Notes on Human Rights

HUMAN RIGHTS NOTES
Pestaño v. The Philippines
The case before the UN Human Rights Committee against the Philippine Government for violation of the International Covenant on Civil and
Political Rights
In January 11, 2012, the new Ombudsman (former Supreme Court justice) Conchita Carpio-Morales filed “murder charges against 10 officials
and officers of the Philippine Navy in connection with the death of [Phillip] Pestaño. Morales [reversed] the earlier dismissal of [her predecessor]
saying there is sufficient evidence to file charges against Captain Ricardo Ordoñez, Cdr. Reynaldo Lopez, HM2 Welmenio Aquino, LCdr.
Luidegar Casis, LCdr. Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito Colico, LCdr. Ruben Roque, Petty Officer 1st Class Carlito
Amoroso, and Petty Officer 2nd Class Mil Leonor Igcasan.”
In honor of Phillip Pestaño’s courage and his parents’ determination, we revisit the findings by the UN Human Rights Committee (UNHRC) in
2010 upon a complaint filed in April 24, 2007 by Phillip’s parents, Spouses Felipe and Evelyn Pestaño, against the Philippine government, in
relation to their Phillip’s alleged murder on September 27, 1995. The complaint filed by Spouses Pestaño was for “violation by the Philippines of
their son’s rights under article 6[2], article 2, paragraph 3[3], article 9, paragraph 1[4], and article 17, paragraph 1[5] of the International
Covenant on Civil and Political Rights [ICCPR].”
The facts as presented by Spouses Pestaño before the UNHRC
Phillip Pestaño was an Officer of the Philippine Navy serving as cargo officer of the ship “BRP Bacolod City” during its Mindanao voyage in
September 1995. On or about 25 September 1995, the ship’s Commander permitted the loading of more than 14,000 board feet of logs onto the
BRP Bacolod City, without proper papers or authorization. Phillip vehemently objected to the loading of such unauthorized cargoes.
On 26 September 1995, the Phillip’s parents received an anonymous phone call, warning them that their son’s life was in danger. On the same
day, they collected their son from the Navy Station at Sangley Point, Cavite City, about 100 kilometers from Manila, and took him to their house
in Loyola Heights, Quezon City. That night, Phillip disclosed to his father that the BRP Bacolod City ship was “dirty”, and that the illegal cargo
included 20 sacks of shabu (formed from Methamphetamine), worth approximately 1 billion pesos in the black market. The father tried to
dissuade his son from pursuing the case, as he was concerned that any action taken by his son may jeopardize his own business, as the Philippine
Navy’s biggest ship repair contractor. But Phillip was determined to take the matter forward.
On 27 September 1995, at about 4:00 am, Phillip left the family home and proceeded to board the BRP Bacolod City. At about 11:00 am on the
same day, his parents received a call from the Philippine Navy, asking them to proceed to the Navy Headquarters in Manila, because their son
Phillip “had an accident”.
When his parents reached the Navy Headquarters, they were prevented from entering their son’s suite, where he lay dead. Instead, they were
immediately asked to sign an authorization for an autopsy to be conducted on their son’s body, to which they consented after having viewed their
son’s body. The Navy thereafter exhibited an alleged suicide weapon and an alleged suicide note, in support of their position that Phillip had
committed suicide.
Significantly, on 30 September 1995, Phillip was buried in the National Cemetery for military personnel and given full military honors, despite a
Navy policy stating that suicide victims should not benefit from such treatment.
After conducting their own investigations, the Criminal Investigation Division of the Philippine National Police and the National Bureau of
Investigation of the Department of Justice corroborated the Navy’s position, concluding that Phillip had committed suicide.
Also notable is the fact that in the course of the same month, after conducting its own inquiry, and despite the official Navy and police
conclusions, Phillip’s insurance company paid the full amount of his coverage to his beneficiaries for his death. Apparently, the insurance
company believed Phillip did not commit suicide.
In October 1995, the radio operator of the BRP Bacolod City during its Mindanao voyage, and close friend of Phillip, drowned in high seas
under highly suspicious circumstances during an alleged mission where all his companions survived. The victim’s body was never found.
In November 1995, another member of the Navy, who was perceived as Phillip’s ally, and who was also aboard the BRP Bacolod City in
September 1995, mysteriously disappeared after being ordered to report to the Navy Headquarters in Manila. This person is still missing and is
believed to be dead.
On 15 November 1995, two Senators filed a Senate Resolution, directing the appropriate Senate Committees to conduct an inquiry into the
circumstances surrounding Phillip’s death.
In December 1995, the State party’s Navy Flag Officer in Command, a Vice-Admiral, invited Phillip’s parents to dinner, and requested that they
refrain from pursuing their son’s case against the Navy. Two weeks later, the Navy Flag Officer in Command sought to see Spouses Pestaño
again, and presented Mr. Pestaño with his company’s contract with the Navy, worth a hundred-million pesos, together with an affidavit of waiver
and desistance to pursue his suit against the Navy. The spouses decided that they would not abandon their son’s claim. One week after this
information was relayed to the Navy Flag Officer in Command, the four Navy ships being repaired by Mr. Pestaño’s company all mysteriously
sank, and his company’s offices in the Navy Station in Sangley Point were ransacked and looted.
It is also reported that Mr. Pestaño’s nephew, the company’s property custodian, was shot dead during the same period.
On 2 January 1996, Spouses Pestaño received a leaked copy of an intelligence report of the Armed Forces, which stated that the BRP Bacolod
City carried 1 billion pesos worth of shabu in 20 sacks of rice during its September 1995 trip. The report also indicated that this shipment had
been escorted by a Security Officer of the Navy Flag Officer in Command, and that upon discovering the illegal cargo, Phillip had confronted his
superior, and was killed afterwards, to prevent him from revealing the criminal activities taking place on board the ship. This confidential report
also identified the chief security officer of the Navy Flag Officer in Command as the most likely perpetrator of the crime.
In January 1996, another member of the Philippine Navy mysteriously died in a military hospital, after a strange and quick deterioration of his
condition. This person was suspected of involvement in the “shabu operation” in the BRP Bacolod City, as well as in the death of Phillip, and had
engaged in discreet talks with Spouses Pestaño before theirs son’s death. He was believed to be ready to reveal important information before he
died. The death of this member of the Navy brings to four the number of persons killed in connection with the September 1995 voyage of the
BRP Bacolod City. The four killings remain uninvestigated, and unaccounted for.
Spouses Pestaño filed complaints against the Commanding Officer and certain crew members of the BRP Bacolod City: (1) in September 1995
with the Philippine Navy; (2) in September 1995 with the Philippine National Police and the National Bureau of Investigation of the Department

of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in January 1998 with the Philippine Senate (Committees
on Justice-Human Rights and Defense-National Security); (4) in March 2000 with Ombudsman Aniano Desierto; (5) and in October 2005 with a
new Ombudsman (Simeon Marcelo), who was replaced thereafter. No action was taken on the case by the new Ombudsman, Merceditas
Gutierrez, since she took office in December 2005.
After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December 2005, the Ombudsman found merit in the
spouses’ petition, reopened the case, and requested from the Commanding Officer of the BRP Bacolod City in September 1995, and from eight
senior and junior officers and enlisted personnel to submit counter-affidavits as respondents, within ten days. However, only one week after
reopening the spouses’ case, the Ombudsman stepped down, and was replaced. Since then, the case was left uninvestigated in the Office of the
Ombudsman for military affairs.
On 25 January 1998, after eight Committee hearings, a visual inspection of Phillip’s stateroom in the ship, and relying, inter alia, on expert
evidence and witness testimonies, two Senate Committees issued a Joint report on the Pestaño case, which contained the following findings: (i)
Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in one place in the vessel different from the one
where his body was found; (iii) after his death, his body was moved and laid on the bed where it was found; (iv) he must have been shot on board
the BRP Bacolod City before the vessel reached the Navy Headquarters on 27 September 1995; (v) there was a deliberate attempt to make it
appear that Phillip killed himself inside his stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not have
accomplished it by himself. The Senate Committees also recommended, inter alia, that an independent investigation be conducted on the
circumstances surrounding Phillip’s murder, so as to bring the perpetrators to justice, and identify the other individuals who participated in the
deliberate attempt to portray a suicide.
On 28 March 2000, the Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed the case without prejudice, concluding
in its evaluation report that “the conduct of further investigation in order to find out the identity of the perpetrator and his accomplices, if any, will
only be a waste of time, considering that the physical evidence has already been tampered with, not to mention the lapse of time”.
UNHRC’s consideration of the merits of the case
Violation of Article 6 of the ICCPR
As regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated – referring to the ICCPR as the Covenant - that it:
“Recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive
obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also
by private persons or entities. The Committee also refers to its jurisprudence, according to which both a criminal investigation and consequential
prosecution are necessary remedies for violations of human rights such as those protected by article 6. A violation of the Covenant may therefore
arise as a result of a State party’s failure to take appropriate measures to punish, investigate or redress such a violation.”
“7.2 Despite the initial findings of the [Philippine] National Police and Department of Justice, which both concluded in October 1995 that the
victim had committed suicide, it now appears undisputed that the death of [Phillip Pestaño] was a violent one, resulting from a homicide. The
[Philippine Authorities’] submissions of 18 January and 8 May 2008, contending that [Spouses Pestaño]’s case was “an ordinary criminal case”,
at least concede this fact…”
The UNHRC took note of the following:
1. Conclusions of the substantial Senate report of 25 January 1998, which established that the victim was shot on board the BRP Bacolod
City on 27 September 1995, that there had been a deliberate attempt to make it appear that [he] killed himself, and which recommended
that an independent investigation be conducted.
2. That an administrative and criminal action filed by [Spouses Pestaño] is currently pending against members of the [Philippine]’s Navy,
i.e. of an organ of the [state].
3. [Spouses Pestaño]’s assertions that two other members of the [Philippine] Navy who were close to the victim, as well as another Navy
Ensign who allegedly participated in the illicit boarding of drugs on the BRP Bacolod City, and who had engaged in communications
with [Spouses Pestaño] about their son’s death, all died or disappeared in mysterious circumstances between October 1995 and January
1996.
4. [Spouses Pestaño]’s report of having been threatened by a Vice-Admiral of the [Philippine] Navy to lose their business with the Navy
should they persist in their complaint. As they pursued their action, [Spouses Pestaño] reportedly lost their business, and their nephew,
the company’s property custodian, was killed.
5. In the absence of rebuttal statements, or any comments from the [Philippine Authorities] on these facts, the Committee gives due
weight to the [Spouses Pestaño]’s contentions, which raise a strong presumption of direct participation of the [Philippine Government]
in the violation of their son’s right to life.
The UNHRC then considered the following:
1.
That the killing of [Spouses Pestaño]’s son on board a ship of the [Philippine] Navy warranted a speedy, independent investigation on
the possible involvement of the Navy in the crime. … To simply state that there was no direct participation of the State party in the violation of
the victim’s right to life falls short of fulfilling such positive obligation under the Covenant. While close to fifteen years elapsed since the death of
the victim, [Spouses Pestaño] are still ignorant of the circumstances surrounding their son’s death, and the [Philippine] authorities have yet to
initiate an independent investigation. In its submission of 8 May 2008, the [Philippine Authorities] referred to an Order of 10 August 2007 of the
Office of the Ombudsman, which deemed it necessary to conduct further proceedings … in the case. The Committee is not aware, however, of
any preliminary proceedings undertaken by that Office since an action was filed de novo by [Spouses Pestaño] in October 2005. Since that date,
no suspect was prosecuted, or tried, let alone convicted, and [Spouses Pestaño] were not compensated for the tragic loss of their son.
2.
That the death of [Phillip Pestaño] is directly attributable to the [Philippine Authorities]. When a person dies in circumstances that
might involve a violation of the right to life, the State party is bound to conduct an investigation and ensure that there is no impunity. The
[Philippine Authorities] must accordingly be held to be in breach of its obligation, under article 6, read in conjunction with article 2, paragraph 3,
to properly investigate the death of [Phillip Pestaño], prosecute the perpetrators, and ensure redress.
Violation of Article 2, paragraph 3(a) of the ICCPR
The UNHRC states that “Under article 2, paragraph 3(a), of the Covenant, the [Philippines] is under an obligation to provide [Spouses Pestaño]
with an effective remedy in the form, inter alia, of an impartial, effective and timely investigation into the circumstances of their son’s death,
prosecution of perpetrators, and adequate compensation. The [Philippines] is also under an obligation to prevent similar violations in the future.”
In ending, the UNHRC relayed its wish “to receive from the [Philippines], within 180 days, information about the measures taken to give effect
to the Committee's Views.”

We are unaware if the UNHRC’s wish was granted.
Violation of Article 9, paragraph 1 of the ICCPR
In claiming violation of article 9 paragraph 1of the Covenant, the UNHRC stated that “[Spouses Pestaño] claim that they received an anonymous
call, informing them that their son’s life was in danger, the day before he was found dead. However, there is no evidence that [Spouses Pestaño]
reported these threats against their son to [Philippine] authorities, and if so, that the [Philippine Authorities] failed to take appropriate action for
this protection. Nor is there any conclusive evidence that the [Philippine Authorities were] involved in threatening [Phillip Pestaño]. In the
absence of any further arguments put forward by [Spouses Pestaño] on this issue, the Committee [considered] that these claims are not
sufficiently substantiated for the purposes of admissibility and [therefore] inadmissible ...”
Violation of Article 17, paragraph 1 of the ICCPR
The UNHRC ruled similarly regarding the alleged violation of Article 17 paragraph 1 of the Covenant since [Spouses Pestaño] claim that “the
[Philippine Authorities’] attempt to make it appear that [Phillip Pestaño] committed suicide, is to be construed as an unlawful attack against his
honor. [The Committee considered] that this claim [was not] sufficiently substantiated for the purposes of admissibility, and is inadmissible …”
It is ironic and deeply sad that an international body had to deliberate upon the merits of what is clearly a local criminal affair. Justice delayed is
justice denied they say. Nevertheless, the filing of the cases, while long overdue, is still a welcome development. We can only hope that the
Philippine Government now stops its stonewalling, cleans its ranks, and help in any one’s sincere pursuit of justice. A much cleaner government
would have prevented the early and unjustified death of Phillip Pestaño. A more just government would now support Felipe and Evelyn Pestaño
any way they can and prevent the grief of families like theirs in the future.
Obergefell v. Hodges
Facts: Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the
constitutionality of those states’ bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that
provided for such marriages. The plaintiffs in each case argued that the states’ statutes violated the Equal Protection Clause and Due Process
Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil Rights Act. In all the cases, the trial court
found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the states’ bans on same-sex marriage and
refusal to recognize marriages performed in other states did not violate the couples’ Fourteenth Amendment rights to equal protection and due
process.
Issues:
(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and
performed in another state?
Conclusion
Decision: 5
votes
for
Obergefell,
4
vote(s)
against
Legal provision: Equal Protection 14th Amendment
Yes, yes. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due Process Clause of the Fourteenth
Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same
manner as it does to opposite-sex couples. Judicial precedent has held that the right to marry is a fundamental liberty because it is inherent to the
concept of individual autonomy, it protects the most intimate association between two people, it safeguards children and families by according
legal recognition to building a home and raising children, and it has historically been recognized as the keystone of social order. Because there
are no differences between a same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from
the right to marry violates the Due Process Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also
guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law.
Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty
and equality apply with equal force to these cases; therefore, the Constitution protects the fundamental right of same-sex couples to marry. The
Court also held that the First Amendment protects the rights of religious organizations to adhere to their principles, but it does not allow states to
deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.
Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be good and fair policy, the
Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether states have to recognize or license such
unions. Instead, this issue should be decided by individual state legislatures based on the will of their electorates. The Constitution and judicial
precedent clearly protect a right to marry and require states to apply laws regarding marriage equally, but the Court cannot overstep its bounds
and engage in judicial policymaking. The precedents regarding the right to marry only strike down unconstitutional limitations on marriage as it
has been traditionally defined and government intrusions, and therefore there is no precedential support for making a state alter its definition of
marriage. Chief Justice Roberts also argued that the majority opinion relied on an overly expansive reading of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment without engaging with the judicial analysis traditionally applied to such claims and while
disregarding the proper role of the courts in the democratic process. Justices Antonin Scalia and Clarence Thomas joined in the dissent. In his
separate dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Court’s authority both by exercising the legislative,
rather than judicial, power and by doing so in a realm that the Constitution reserves for the states. Justice Scalia argued that the question of
whether same-sex marriage should be recognized is one for the state legislatures, and that for the issue to be decided by unelected judges goes
against one of the most basic precepts of the Constitution: that political change should occur through the votes of elected representatives. In
taking on this policymaking role, the majority opinion departed from established Fourteenth Amendment jurisprudence to create a right where
none exists in the Constitution. Justice Thomas joined in the dissent. Justice Thomas also wrote a separate dissent in which he argued that the
majority opinion stretched the doctrine of substantive due process rights found in the Fourteenth Amendment too far and in doing so distorted the
democratic process by taking power from the legislature and putting it in the hands of the judiciary. Additionally, the legislative history of the
Due Process Clause in both the Fifth and Fourteenth Amendments indicates that they were meant to protect people from physical restraint and
from government intervention, but they do not grant them rights to government entitlements. Justice Thomas also argued that the majority
opinion impermissibly infringed on religious freedom by legislating from the bench rather than allowing the state legislature to determine how
best to address the competing rights and interests at stake. Justice Scalia joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr.
wrote that the Constitution does not address the right of same-sex couples to marry, and therefore the issue is reserved to the states to decide
whether to depart from the traditional definition of marriage. By allowing a majority of the Court to create a new right, the majority opinion
dangerously strayed from the democratic process and greatly expanded the power of the judiciary beyond what the Constitution allows. Justice
Scalia and Justice Thomas joined in the dissent.

CHARACTERISTICS OF HUMAN RIGHTS
1. Inherent – Human Rights are inherent because they are not granted by any person or authority.
2. Fundamental – Human Rights are fundamental rights because without them, the life and dignity of man will be meaningless.
3. Inalienable – Human Rights are inalienable because:
a. They cannot be rightfully taken away from a free individual.
b. They cannot be given away or be forfeited.
4. Imprescriptible – Human Rights do not prescribe and cannot be lost even if man fails to use or assert them, even by a long passage of time.
5. Indivisible – Human Rights are not capable of being divided. They cannot be denied even when other rights have already been enjoyed.
6. Universal – Human Rights are universal in application and they apply irrespective of one’s origin, status, or condition or place where one
lives. Human rights are enforceable without national border.
7. Interdependent – Human Rights are interdependent because the fulfillment or exercise of one cannot be had without the realization of the
other.

CLASSIFICATION OF HUMAN RIGHTS
1. CLASSIC AND SOCIAL RIGHTS
One classification used is the division between ‘classic’ and ‘social’ rights. ‘Classic’ rights are often seen to require the non-intervention of the
state (negative obligation), and ‘social rights’ as requiring active intervention on the part of the state (positive obligations). In other words, classic
rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees. Lawyers often
describe classic rights in terms of a duty to achieve a given result (‘obligation of result’) and social rights in terms of a duty to provide the means
(‘obligations of conduct’). The evolution of international law, however, has led to this distinction between ‘classic’ and ‘social’ rights becoming
increasingly awkward. Classic rights such as civil and political rights often require considerable investment by the state. The state does not
merely have the obligation to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial,
for instance, requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative support. Another example is the
organization of elections, which also entails high costs.
On the other hand, most ‘social’ rights contain elements that require the state to abstain from interfering with the individual’s exercise of the right.
As several commentators note, the right to food includes the right for everyone to procure their own food supply without interference; the right to
housing implies the right not to be a victim of forced eviction; the right to work encompasses the individual’s right to choose his/her own work
and also requires the state not to hinder a person from working and to abstain from measures that would increase unemployment; the right to
education implies the freedom to establish and direct educational establishments; and the right to the highest attainable standard of health implies
the obligation not to interfere with the provision of health care.
In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not reflect the nature of the obligations under each set of rights.
2. CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Civil rights
The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen articles of the UDHR, almost all of which are also set
out as binding treaty norms in the ICCPR. From this group, a further set of ‘physical integrity rights’ has been identified, which concern the right
to life, liberty and security of the person, and which offer protection from physical violence against the person, torture and inhuman treatment,
arbitrary arrest, detention, exile, slavery and servitude, interference with one’s privacy and right of ownership, restriction of one’s freedom of
movement, and the freedom of thought, conscience and religion. The difference between ‘basic rights’ (see below) and ‘physical integrity rights’
lies in the fact that the former include economic and social rights, but do not include rights such as protection of privacy and ownership.
Although not strictly an integrity right, the right to equal treatment and protection in law certainly qualifies as a civil right. Moreover, this right
plays an essential role in the realization of economic, social and cultural rights.
Another group of civil rights is referred to under the collective term ‘due process rights’. These pertain, among other things, to the right to a
public hearing by an independent and impartial tribunal, the ‘presumption of innocence’, the ne bis in idem principle (freedom from double
jeopardy) and legal assistance (see, e.g., Articles 9, 10, 14 and 15 ICCPR).
Political rights
In general, political rights are those set out in Articles 19 to 21 UDHR and also codified in the ICCPR. They include freedom of expression,
freedom of association and assembly, the right to take part in the government of one’s country and the right to vote and stand for election at
genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 ICCPR).
Economic and social rights
The economic and social rights are listed in Articles 22 to 26 UDHR, and further developed and set out as binding treaty norms in the ICESCR.
These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right
to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social
rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education
(see Articles 6 to 14 ICESCR).

Cultural rights
The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in
scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic
production of which one is the author (see also Article 15 ICESCR and Article 27 ICCPR).
The alleged dichotomy between civil and political rights, and economic, social and cultural rights
Traditionally it has been argued that there are fundamental differences between economic, social and cultural rights, and civil and political rights.
These two categories of rights have been seen as two different concepts and their differences have been characterized as a dichotomy. According
to this view, civil and political rights are considered to be expressed in very precise language, imposing merely negative obligations which do not
require resources for their implementation, and which therefore can be applied immediately. On the other hand, economic, social and cultural
rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore
involving a progressive realization.
As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and
cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar
bodies, while economic, social and cultural rights are ‘by their nature’ non-justiciable.
Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly
stressed. During the last decade, we have witnessed the development of a large and growing body of case law of domestic courts concerning
economic, social and cultural rights. This case law, at the national and international level, suggests a potential role for creative and sensitive
decisions of judicial and quasi-judicial bodies with respect to these rights.
Many international fora have elaborated on the indivisibility and interdependency of human rights. As stated in the 1993 Vienna Declaration and
Program of Action: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat
human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’ The European Union (EU) and its member
states have also made it clear on numerous occasions that they subscribe to the view that both categories of human rights are of equal importance,
in the sense that an existence worthy of human dignity is only possible if both civil and political rights and economic, social and cultural rights
are enjoyed. In their Declaration of 21 July 1986, they affirmed that ‘the promotion of economic, social and cultural rights as well as of civil and
political rights is of paramount importance for the full realization of human dignity and for the attainment of the legitimate aspirations of every
individual.’
The so-called Limburg Principles on the Implementation of the ICESCR also indicate that a sharp distinction between civil and political rights on
the one hand and economic, social and cultural rights on the other is not accurate. These principles were drawn up in 1986 by a group of
independent experts, and followed in 1997 by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Together, these
documents provide a clear explanation of the nature of the state party obligations under the ICESCR. The same can be said of the 1990 General
Comment 3 of the UN Committee on Economic, Social and Cultural Rights on the nature of states parties’ obligations in relation to the ICESCR.
Fortunately, continuous declarations at the international level on the indivisibility and interdependency of all rights have finally been codified by
way of the recently adopted Optional Protocol to the ICESCR. States parties to the Optional Protocol will recognize the competence of the
Committee on Economic, Social and Cultural Rights to receive and consider individual and collective complaints alleging violations of
economic, social and cultural rights set forth in the ICESCR. The Committee will also be empowered to request interim measures to avoid
possible irreparable damage to the victims of the alleged violations and, where it receives reliable information indicating grave or systematic
violations, it shall conduct an inquiry which may include a visit to the state party.
The adoption of the Optional Protocol on the 60th anniversary of the UDHR, on 10 December 2008, represents an historic advance for human
rights. Firstly, economic, social and cultural rights - historically demoted to an inferior status with limited protection - are now finally on an equal
footing with civil and political rights. Secondly, through an individual complaints procedure the meaning and scope of these rights will become
more precise, facilitating efforts to respect and guarantee their enjoyment. Thirdly, the existence of a potential ‘remedy’ at the international level
will provide an incentive to individuals and groups to formulate some of their economic and social claims in terms of rights. Finally, the
possibility of an adverse ‘finding’ of the Committee on Economic, Social and Cultural Rights will give economic, social and cultural rights
salience in terms of the political concerns of governments; which these rights largely lack at present.
3. FUNDAMENTAL AND BASIC RIGHTS
Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have
been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring
already recognized rights and matters of policy which affect human development into the sphere of human rights. Concern that a broad definition
of human rights may lead to the notion of ‘violation of human rights’ losing some of its significance has generated a need to distinguish a separate
group within the broad category of human rights. Increasingly, the terms ‘elementary’, ‘essential’, ‘core’ and ‘fundamental’ human rights are
being used.
Another approach is to distinguish a number of ‘basic rights’, which should be given absolute priority in national and international policy. These
include all the rights which concern people’s primary material and non-material needs. If these are not provided, no human being can lead a
dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from
slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity.
They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and
other essentials crucial to physical and mental health.
Mention should also be made of so-called ‘participation rights’; for instance, the right to participate in public life through elections (which is also
a political right; see above) or to take part in cultural life. These participation rights are generally considered to belong to the category of
fundamental rights, being essential preconditions for the protection of all kinds of basic human rights.
4. OTHER CLASSIFICATIONS
Freedoms
Preconditions for a dignified human existence have often been described in terms of freedoms ( e.g., freedom of movement, freedom from torture
and freedom from arbitrary arrest). United States President Franklin D. Roosevelt summarized these preconditions in his famous ‘Four Freedoms
Speech’ to the United States Congress on 26 January 1941:
 Freedom of speech and expression;
 Freedom of belief (the right of every person to worship God in his own way);




Freedom from want (economic understandings which will secure to every nation a healthy peace-time life for its inhabitants); and
Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion that no nation would be able to
commit an act of physical aggression against any neighbor).

Roosevelt implied that a dignified human existence requires not only protection from oppression and arbitrariness, but also access to the primary
necessities of life.
Civil liberties
The concept of ‘civil liberties’ is commonly known, particularly in the United States, where the American Civil Liberties Union (a nongovernmental organization) has been active since the 1920s. Civil liberties refer primarily to those human rights which are laid down in the
United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection
against interference with one’s privacy, protection against torture, the right to a fair trial, and the rights of workers. This classification does not
correspond to the distinction between civil and political rights.

Individual and collective rights
Although the fundamental purpose of human rights is the protection and development of the individual (individual rights), some of these rights
are exercised by people in groups (collective rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom
to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to
membership of a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. One
must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with
others, and the rights of a collective.
The most notable example of a collective human right is the right to self-determination, which is regarded as being vested in peoples rather than
in individuals (see Articles 1 ICCPR and ICESCR). The recognition of the right to self-determination as a human right is grounded in the fact that
it is seen as a necessary precondition for the development of the individual. It is generally accepted that collective rights may not infringe on
universally accepted individual rights, such as the right to life and freedom from torture.
First, second and third generation rights
The division of human rights into three generations was first proposed by Karel Vasak at the International Institute of Human Rights in
Strasbourg. His division follows the principles of Liberté, Égalité and Fraternité of the French Revolution.
First generation rights are related to liberty and refer fundamentally to civil and political rights. The second generation rights are related to
equality, including economic, social and cultural rights. Third generation or ‘solidarity rights’ cover group and collective rights, which
include, inter alia, the right to development, the right to peace and the right to a clean environment. The only third generation right which so far
has been given an official human rights status - apart from the right to self-determination, which is of longer standing - is the right to
development (see the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration
and Program of Action (Paragraph I, 10)). The Vienna Declaration confirms the right to development as a collective as well as an individual right,
individuals being regarded as the primary subjects of development. Recently, the right to development has been given considerable attention in
the activities of the High Commissioner for Human Rights. Adoption of a set of criteria for the periodic evaluation of global development
partnerships from the perspective of the right to development by the Working Group on the Right to Development, in January, 2006, evidence the
concrete steps being taken in this area. The EU and its member states also explicitly accept the right to development as part of the human rights
concept.
While the classification of rights into ‘generations’ has the virtue of incorporating communal and collective rights, thereby overcoming the
individualist moral theory in which human rights are grounded, it has been criticized for not being historically accurate and for establishing a
sharp distinction between all human rights. Indeed, the concept of generations of rights is at odds with the Teheran Proclamation and the Vienna
Declaration and Program of Action, which establish that all rights are indivisible, interdependent and interrelated.
HISTORY OF THE UNITED NATIONS
The name "United Nations", coined by United States President Franklin D. Roosevelt was first used in the Declaration by United Nations of 1
January 1942, during the Second World War, when representatives of 26 nations pledged their Governments to continue fighting together against
the Axis Powers.
States first established international organizations to cooperate on specific matters. The International Telecommunication Union was founded in
1865 as the International Telegraph Union, and the Universal Postal Union was established in 1874. Both are now United Nations specialized
agencies.
In 1899, the International Peace Conference was held in The Hague to elaborate instruments for settling crises peacefully, preventing wars and
codifying rules of warfare. It adopted the Convention for the Pacific Settlement of International Disputes and established the Permanent Court of
Arbitration, which began work in 1902.
The forerunner of the United Nations was the League of Nations, an organization conceived in similar circumstances during the First World War,
and established in 1919 under the Treaty of Versailles "to promote international cooperation and to achieve peace and security." The International
Labor Organization was also created under the Treaty of Versailles as an affiliated agency of the League. The League of Nations ceased its
activities after failing to prevent the Second World War.
In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up
the United Nations Charter. Those delegates deliberated on the basis of proposals worked out by the representatives of China, the Soviet Union,
the United Kingdom and the United States at Dumbarton Oaks, United States in August-October 1944. The Charter was signed on 26 June 1945
by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51
Member States.
The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union,
the United Kingdom, the United States, and by a majority of other signatories. United Nations Day is celebrated on 24 October each year.
HISTORY OF THE UNITED NATIONS CHARTER

The United Nations Charter is the treaty that established the United Nations. The following series of events led to the writing of the Charter, and
the UN's founding.
12 June 1941 - The Declaration of St. James's Palace
In June 1941, London was the home of nine exiled governments. The great British capital had already seen twenty-two months of war and in the
bomb-marked city, air-raid sirens wailed all too frequently. Practically all Europe had fallen to the Axis and ships on the Atlantic, carrying vital
supplies, sank with grim regularity. But in London itself and among the Allied governments and peoples, faith in ultimate victory remained
unshaken. And, even more, people were looking beyond military victory to the postwar future.
14 August 1941 - The Atlantic Charter
Two months after the London Declaration came the next step to a world organization, the result of a dramatic meeting between President
Roosevelt and Prime Minister Churchill.
1 January 1942 - The Declaration of the United Nations
Representatives of 26 countries fighting the Rome-Berlin-Tokyo Axis, decide to support the by Signing the Declaration of the United Nations.
1943 - Moscow and Teheran Conference
Thus by 1943 all the principal Allied nations were committed to outright victory and, thereafter, to an attempt to create a world in which “men in
all lands may live out their lives in freedom from fear and want.” But the basis for a world organization had yet to be defined, and such a
definition came at the meeting of the Foreign Ministers of Great Britain, the United States and the Soviet Union in October 1943.
1944-1945 - Dumbarton Oaks and Yalta
The principles of the world organization-to-be were thus laid down. But it is a long step from defining the principles and purpose of such a body
to setting up the structure. A blueprint had to be prepared, and it had to be accepted by many nations.
1945 - San Francisco Conference
Forty-five nations, including the four sponsors, were originally invited to the San Francisco Conference: nations which had declared war on
Germany and Japan and had subscribed to the United Nations Declaration.
THE HISTORY OF THE UNITED NATIONS DECLARATION OF HUMAN RIGHTS
The United Nations Charter, specifically Article 68, requires the United Nations Economic and Social Council to set up a commission that
focuses on human rights and economic and social fields.
Article 68 of the United Nations Charter:
“The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other
commissions as may be required for the performance of its functions.”
The outcome of which was the establishment of the United Nations commission on human rights. The commission on human rights was
composed of 8 members and was chaired by Mrs. Eleanor Roosevelt, the widow of the late us president franklin d. Roosevelt — one of the
key persons responsible for the establishment of the United Nations. The said commission was tasked for the drafting of the international bill
of human rights. The central core of the bill was the universal respect for human rights and fundamental freedoms, which includes the
classical, cultural, economic, social, political and other rights.
After the drafting by the Commission, it was revised in light of the replies of some member states of the United Nations. Afterwards, it was
submitted to the United Nations General Assembly. The United Nations General Assembly, is one of the principal organs and the policy making
representative forum of the United Nations.
The General Assembly, in turn, scrutinized the document, with the 58 Member States voting a total of 1,400 times on practically every word
and every clause of the text. There were many debates. Some Islamic States objected to the articles on equal marriage rights and on the right to
change religious belief, for example, while several Western countries criticized the inclusion of economic, social and cultural rights. On 10
December 1948, the United Nations General Assembly unanimously adopted the Universal Declaration of Human Rights, with 8 abstentions.
Since then, 10 December is celebrated every year worldwide as Human Rights Day. The adoption of the Declaration was immediately hailed as a
triumph, uniting very diverse and even conflicting political regimes, religious systems and cultural traditions.
THE UNITED NATIONS DECLARATION OF HUMAN RIGHTS
Political rights
In general, political rights are those set out in Articles 19 to 21 UDHR. They include freedom of expression, freedom of association and assembly,
the right to take part in the government of one’s country and the right to vote and stand for election at genuine periodic elections held by secret
ballot.
Economic and social rights
The economic and social rights are listed in Articles 22 to 26 UDHR. These rights provide the conditions necessary for prosperity and wellbeing.
Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a
reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living,
including rights to health, shelter, food, social care, and the right to education.
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in
scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic
production of which one is the author.
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

In article 29, the Universal Declaration of Human Rights reminds us that rights carry responsibilities. It reminds us that everyone has duties to the
community.
A half century ago, the Declaration's drafters could not have imagined the world as we know it; a world where substances released on one
continent contribute to health problems on another; a world where the destruction of forests or industrial emissions of greenhouse gases in one
part of the globe have the power to affect the global climate.
Today, we are more aware than ever that we live in a global village; that community now extends beyond towns, beyond regions and beyond
countries. Our duty to the community is nothing short of our duty to care for the environment from pole to pole.
We are beginning to understand the urgent need to care for our global commons: to protect the ozone layer, to rid roads and fields of the scourge
of landmines, to curb climate change, to care for our forests and the bounty of the seas. The Montreal Protocol on ozone-depleting substances and
the International Convention on Landmines are fine examples of what can be achieved when human rights and human health are respected.
Today, Article 29 is a very valid reminder that the dignity and rights of all members of the human family can be preserved if we accept our duty
to the global community. By accepting that duty, we will avoid the tragedy of the commons.
Article 30
Nothing in the Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to
perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Article 30 serves much the same function as the Constitution of Canada which makes explicit the principle that one part of the Constitution
cannot be used to invalidate or repeal another. Examining the Universal Declaration of Human Rights in a structural sense, it is clear that the
inclusion of Article 30 serves a critical function, in that it precludes the possibility of using the provisions of one article to trump the intended
function and provisions of another.
For example, article 18 articulates the universal right to freedom of religious observance, accompanied by the right to manifest that religion or
belief in teaching, practice, worship and observance. Article 16(3) articulates the importance of the family as the natural and fundamental group
unit of society which is entitled to protection by society and the State. In light of article 30 then, it follows that, for example, a devoutly religious
family cannot justify the involuntary "marrying off" of a child, thus trumping Article 16(2), which spells out that marriage shall be entered into
only with the free and full consent of the individual, the act of marrying that child would stand in direct contravention of the Declaration.
This is not a hollow example. In many countries and societies around the world, children are subjected to family duress and forced into marriage
according to their families' religious convictions.
The fundamental point of Article 30 is to avoid the fallacious interpretation of any of the provisions of the Universal Declaration of Human
Rights.
International Covenant on Civil and Political Rights
The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.

Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the right to "freely determine their political status”, pursue
their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be
deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self-governing and trust territories
(colonies) to encourage and respect their self-determination.

Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to the rights recognized in the Covenant, and to provide an
effective legal remedy for any violation of those rights. It also requires the rights be recognized "without distinction of any kind, such as race,
color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” and to ensure that they are
enjoyed equally by women. The rights can only be limited "in time of public emergency which threatens the life of the nation,” and even then no
derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood,
and freedom of thought, conscience and religion.

Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to:



physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8);
liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Articles 9 –
11);







procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition
as a person before the law (Articles 14, 15, and 16);
individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family
rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 – 24);
prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to
discrimination, hostility or violence by law (Article 20);
political participation, including the right to the right to vote (Article 25);
Non-discrimination, minority rights and equality before the law (Articles 26 and 27).

Many of these rights include specific actions which must be undertaken to realize them.

Part 4 (Articles 28 – 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the
Covenant. It also allows parties to recognize the competence of the Committee to resolve disputes between parties on the implementation of the
Covenant (Articles 41 and 42).

Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the
inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources".

Part 6 (Articles 48 – 53) governs ratification, entry into force, and amendment of the Covenant.

Core provisions
Rights to physical integrity
Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law. It is a "supreme right" from
which no derogation can be permitted, and must be interpreted widely. It therefore requires parties to take positive measures to reduce infant
mortality and increase life expectancy, as well as forbidding arbitrary killings by security forces.

While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes” and forbids it to be used on children
and pregnant women or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide. The UN Human
Rights Committee interprets the Article as "strongly suggesting that abolition is desirable", and regards any progress towards abolition of the
death penalty as advancing this right. The Second Optional Protocol commits its signatories to the abolition of the death penalty within their
borders.

Article 7 prohibits torture and cruel, inhuman or degrading punishment. As with Article 6, it cannot be derogated from under any
circumstances. The article is now interpreted to impose similar obligations to those required by the United Nations Convention Against Torture,
including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement. In response to Nazi human
experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.

Article 8 prohibits slavery and enforced servitude in all situations. The article also prohibits forced labor, with exceptions for criminal
punishment, military service and civil obligations.

Liberty and security of person
Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty
to be according to law, and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts. These
provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or
for educational or immigration purposes.

Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them,
and to be brought promptly before a judge. It also restricts the use of pre-trial detention, requiring it to be imposed only in exceptional
circumstances and for as short a period of time as possible.
Article 10 requires anyone deprived of liberty to be treated with dignity and humanity. This applies not just to prisoners, but also to those
detained for immigration purposes or psychiatric care. The right complements the Article 7 prohibition on torture and cruel, inhuman or
degrading treatment. The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated
from convicted prisoners, and children to be separated from adults. It requires prisons to be focused on reform and rehabilitation rather than
punishment.

Article 11 prohibits the use of imprisonment as a punishment for breach of contract.

Procedural fairness and rights of the accused
Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the
courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made
public. Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce
cases or to protect the interests of children. These obligations apply to both criminal and civil hearings, and to all courts and tribunals.

The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the
accused and the right to a fair trial. It establishes the Presumption of innocence and forbids double jeopardy. It requires that those convicted of a
crime be allowed to appeal to a higher tribunal, and requires victims of a Miscarriage of justice to be compensated. It establishes rights to
a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.

Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of
the lesser penalty where criminal sentences have changed between the offence and conviction. But except the criminal according to general
principles of law recognized by international community. (jus cogens)

Article 16 requires states to recognize everyone as a person before the law.

Individual liberties
Article 12 guarantees freedom of movement, including the right of persons to choose their residence and to leave a country. These rights apply to
legal aliens as well as citizens of a state, and can be restricted only where necessary to protect national security, public order or health, and the
rights and freedoms of others. The article also recognises a right of people to enter their own country. The Human Rights Committee interprets
this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality. They also regard it as near-absolute;
“there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable”.

Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.

Article 17 mandates the right of privacy. This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby
nullifying prohibitions on homosexual behavior, however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of
a same-sex marriage right from this provision. Article 17 also protects people against unlawful attacks to their honor and reputation. Article 17
(2) grants the protection of the Law against such attacks.

Article 18 mandates freedom of religion.

Article 19 mandates freedom of expression.

Article 20 mandates sanctions against inciting hatred.

Articles 21 and 22 mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and
also defines the International Labor Organization.

Article 23 mandates the right of marriage. The wording of this provision neither requires nor prohibits same-sex marriage.

Article 24 mandates special protection, the right to a name, and the right to a nationality for every child.

Article 27 mandates the rights of ethnic, religious and linguistic minority to enjoy their own culture, to profess their own religion, and to use their
own language.

Political rights
Article 3 provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independently and can only be relied
upon in relation to another right protected by the ICCPR.

In contrast, Article 26 contains a revolutionary norm by providing an autonomous equality principle which is not dependent upon another right
under the convention being infringed. This has the effect of widening the scope of the non-discrimination principle beyond the scope of ICCPR.

Optional protocols
There are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing
individuals to complain to the Human Rights Committee about violations of the Covenant. This has led to the creation of a complex jurisprudence
on the interpretation and implementation of the Covenant. As of July 2013, the First Optional Protocol has 114 parties.

The Second Optional Protocol abolishes the death penalty; however, countries were permitted to make a reservation allowing for use of death
penalty for the most serious crimes of a military nature, committed during wartime. As of July 2013, the Second Optional Protocol had 77 parties.

International Convention on the Elimination of All Forms of Racial Discrimination
The Convention follows the structure of the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights,
and International Covenant on Economic, Social and Cultural Rights, with a preamble and twenty-five articles, divided into three parts.

Part 1 (Articles 1 – 7) commits parties to the elimination of all forms of racial discrimination and to promoting understanding among all races
(Article 2). Parties are obliged to not discriminate on the basis of race, not to sponsor or defend racism, and to prohibit racial discrimination
within their jurisdictions. They must also review their laws and policies to ensure that they do not discriminate on the basis of race, and commit to
amending or repealing those that do. Specific areas in which discrimination must be eliminated are listed in Article 5.

The Convention imposes a specific commitment on parties to eradicate racial segregation and the crime of apartheid within their jurisdictions
(Article 3). Parties are also required to criminalize the incitement of racial hatred (Article 4), to ensure judicial remedies for acts of racial
discrimination (Article 6), and to engage in public education to promote understanding and tolerance (Article 7).

Part 2 (Articles 8 – 16) governs reporting and monitoring of the Convention and the steps taken by the parties to implement it. It establishes the
Committee on the Elimination of Racial Discrimination, and empowers it to make general recommendations to the UN General Assembly. It also
establishes a dispute-resolution mechanism between parties (Articles 11 – 13), and allows parties to recognize the competence of the Committee
to hear complaints from individuals about violations of the rights protected by the Convention (Article 14).

Part 3 (Articles 17 – 25) governs ratification, entry into force, and amendment of the Convention.

Core provisions
Definition of "racial discrimination"
Article 1 of the Convention defines "racial discrimination" as ...any distinction, exclusion, restriction or preference based on race, color, descent,
or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as
are affirmative action policies and other measures taken to redress imbalances and promote equality.

This definition does not distinguish between discrimination based on ethnicity and discrimination based on race, in part because the distinction
between the ethnicity and race remains debatable among anthropologists. The inclusion of descent specifically covers discrimination on the basis
of caste and other forms of inherited status.

Discrimination need not be strictly based on race or ethnicity for the Convention to apply. Rather, whether a particular action or policy
discriminates is judged by its effects.

In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable
disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin.
The question of whether an individual belongs to a particular racial group is to be decided, in the absence of justification to the contrary, by selfidentification.
Prevention of discrimination
Article 2 of the Convention condemns racial discrimination and obliges parties to "undertake to pursue by all appropriate means and without
delay a policy of eliminating racial discrimination in all its forms. It also obliges parties to promote understanding among all races. To achieve
this, the Convention requires that signatories:






Not practice racial discrimination in public institutions
Not "sponsor, defend, or support" racial discrimination
Review existing policies, and amend or revoke those that cause or perpetuate racial discrimination
Prohibit "by all appropriate means, including legislation," racial discrimination by individuals and organizations within their
jurisdictions
Encourage groups, movements, and other means that eliminate barriers between races, and discourage racial division

Parties are obliged "when the circumstances so warrant" to use affirmative action policies for specific racial groups to guarantee "the full and
equal enjoyment of human rights and fundamental freedoms". However, these measures must be finite, and "shall in no case entail as a
consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been
achieved".

Article 5 expands upon the general obligation of Article 2 and creates a specific obligation to guarantee the right of everyone to equality before
the law regardless of "race, color, or national or ethnic origin". It further lists specific rights this equality must apply to: equal treatment by courts
and tribunals, security of the person and freedom from violence, the civil and political rights affirmed in the ICCPR, the economic, social and
cultural rights affirmed in the ICESCR, and the right of access to any place or service used by the general public, "such as transport hotels,
restaurants, cafes, theatres and parks." This list is not exhaustive, and the obligation extends to all human rights.

Article 6 obliges parties to provide "effective protection and remedies" through the courts or other institutions for any act of racial discrimination.
This
includes
a
right
to
a legal
remedy and damages for
injury
suffered
due
to
discrimination.

Condemnation of apartheid
Article 3 condemns apartheid and racial segregation and obliges parties to "prevent, prohibit and eradicate" these practices in territories under
their jurisdiction. This article has since been strengthened by the recognition of apartheid as a crime against humanity in the Rome Statute of the
International Criminal Court.

The Committee on the Elimination of Racial Discrimination regards this article as also entailing an obligation to eradicate the consequences of
past policies of segregation, and to prevent racial segregation arising from the actions of private individuals.

Prohibition of incitement
Article 4 of the Convention condemns propaganda and organizations that attempt to justify discrimination or are based on the idea of
racial supremacism. It obliges parties, "with due regard to the principles embodied in the Universal Declaration of Human Rights", to adopt
"immediate and positive measures" to eradicate these forms of incitement and discrimination. Specifically, it obliges parties to criminalize hate
speech, hate crimes and the financing of racist activities, and to prohibit and criminalize membership in organizations that "promote and incite"
racial discrimination. A number of parties have reservations on this article, and interpret it as not permitting or requiring measures that infringe on
the freedoms of speech, association or assembly.

The Committee on the Elimination of Racial Discrimination regards this article as a mandatory obligation of parties to the Convention, and has
repeatedly criticized parties for failing to abide by it. It regards the obligation as consistent with the freedoms of opinion and expression affirmed

in the UNDHR and ICCPR and notes that the latter specifically outlaws inciting racial discrimination, hatred and violence. It views the provisions
as necessary to prevent organized racial violence and the "political exploitation of ethnic difference."

Promotion of tolerance
Article 7 obliges parties to adopt "immediate and effective measures", particularly in education, to combat racial prejudice and encourage
understanding and tolerance between different racial, ethnic and national groups.

Dispute resolution mechanism
Articles 11 through 13 of the Convention establish a dispute resolution mechanism between parties. A party that believes another party is not
implementing the Convention may complain to the Committee on the Elimination of Racial Discrimination. The Committee will pass on the
complaint, and if it is not resolved between the two parties, may establish an ad hoc Conciliation Commission to investigate and make
recommendations on the matter. This procedure has never been used.

Article 22 further allows any dispute over the interpretation or application of the Convention to be referred to the International Court of Justice.
This clause has been invoked only once, by Georgia against Russia.

Individual complaints mechanism
Article 14 of the Convention establishes an individual complaints mechanism similar to that of the First Optional Protocol to the International
Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Optional Protocol to
the Convention on the Elimination of All Forms of Discrimination against Women. Parties may at any time recognize the competence of the
Committee on the Elimination of Racial Discrimination to consider complaints from individuals or groups who claim their rights under the
Convention have been violated. Such parties may establish local bodies to hear complaints before they are passed on. Complainants must have
exhausted all domestic remedies, and anonymous complaints and complaints that refer to events that occurred before the country concerned
joined the Optional Protocol are not permitted. The Committee can request information from and make recommendations to a party.

The individual complaints mechanism came into operation in 1982, after it had been accepted by ten states-parties. As of 2010, 58 states had
recognized the competence of the Committee, and 54 cases have been dealt with by the Committee.