CONTENTS

A. Introduction

B. Legal force of human rights and humanitarian law instruments

C. Relevance of International Standards

1. Defining the mandate through the UN Charter, other treaties, and relevant norms

a. UN Charter

b. International Bill of Human Rights

c. International Covenant on Civil and Political Rights

d. International Covenant on Economic, Social and Cultural Rights

e. Specialized treaties

f. Treaty bodies

g. Related UN non-treaty instruments

h. Other United Nations treaties and instruments

i. Geneva Conventions and Protocols

j. Limitations on rights

k. States of emergency and derogations

l. Applicability of international human rights and humanitarian law

m. Most protective standard

n. Regional protection of human rights

2. Relevance of international standards to the identity of the human rights field operation and its effectiveness

a. International character of the operation

b. Usefulness of international standards

A. Introduction

Every HRO should have a good knowledge of the rights guaranteed by international human rights and humanitarian law insofar as relevant to the mandate of the operation. This chapter provides the framework for international human rights and humanitarian law, clarifies sources and legal force of international norms, explains the link between human rights and humanitarian law, and discusses the relevance of such law to the work of HROs.

International human rights law proclaims broad guarantees for the fundamental rights of all human beings. In addition, international humanitarian law, as set forth in the four Geneva Conventions of 1949 and the Additional Protocols of 1977, governs the treatment of combatants and civilians during times of international and internal armed conflict. International humanitarian law reaffirms the principle that, in situations of armed conflict, those persons not directly participating in the hostilities shall be treated humanely.

B. Legal force of human rights and humanitarian law instruments

HROs may notice that multilateral treaties are often given different names, e.g., charter, covenant, convention, and protocol. All are treaties among nations which carry legally binding obligations according to their language. Except for the UN Charter, which under its Article 103 should prevail in the case of conflict with another treaty, all other treaties are of the same legal effect. The term "protocol" is used for a multilateral treaty which would expand or modify the effect of the convention, covenant, or other treaty with which it is associated.

Other internationally agreed texts are referred to as declaration, body of principles, guidelines, etc. The principal difference between treaties and this second type of documents is that treaties may be formally accepted by governments (by ratification or accession) and are thus considered to be legally binding agreements among nations. Documents such as declarations, guidelines, minimum rules, bodies of principles, vary as to their binding effect depending upon the degree to which, for example, they authoritatively interpret treaty obligations, reflect customary international law or general principles of law, reflect customary international law in the process of formation, or are considered to reflect best practices without having more binding legal effect.

The term "instrument" is often used as a generic term to denote either a treaty or another standard-setting document, such as a declaration, body of principles, guidelines, etc.

C. Relevance of International Standards

HROs need to be aware of international human rights standards because those norms define their mandate, provide an international identity to the UN operation, establish legal obligations for the Government, and therefore provide the basis to require respect for human rights from the Government and other actors.

International human rights standards are the principal normative point of reference for HROs operating under the auspices of the United Nations. These cannot be replaced or superceded by the national standards or experience of the country of origin of the HRO, however familiar the Officer may be with them. Whether monitoring Government compliance, reporting violations, intervening with local authorities, or offering advice, the legitimate basis for any action HROs is the international norms and standards contained in the full body of UN and regional human rights instruments.

1. Defining the mandate through the UN Charter, other treaties, and relevant norms

a. UN Charter

Whatever the precise mandate of the field operation in a particular situation, it will ultimately be based upon the authority of the United Nations under the UN Charter. The UN Charter is both the most prominent treaty among nations and contains fundamental human rights provisions. See UN Charter Arts. 1, 55, 56, 103. UN Charter Article 55 defines the basic human rights objectives of the UN in providing that

the United Nations shall promote:

a. higher standards of living, full employment, and conditions of economic and social progress and development;

b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and

c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

9. By ratifying the UN Charter, Member States in Article 56 "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55."

10. Treaties, including the Charter, constitute the primary sources of international law, including international human rights law. Hence, if the mandate indicates that the human rights operation should monitor and promote the protection of human rights, "human rights" will be defined by the terms of the UN Charter as well as the other treaties and relevant instruments promulgated by the international community. If the mandate is more precise (e.g., monitoring free and fair elections, the return of refugees, or ethnic discrimination), the rights it identifies can be found and explicated through human rights treaties and other human rights instruments as well as relevant international customary law and general principles of law.

b. International Bill of Human Rights

The UN General Assembly defined the human rights obligations of UN Member States in the International Bill of Human Rights, which is comprised of:

• Universal Declaration of Human Rights (Universal Declaration);

• International Covenant on Economic, Social and Cultural Rights (Economic, Social and Cultural Covenant); and

• International Covenant on Civil and Political Rights (Civil and Political Covenant) and its first Optional Protocol.

c. International Covenant on Civil and Political Rights

The Covenant on Civil and Political Rights establishes an international minimum standard of conduct for all States parties to it, ensuring the rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public, and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience, and religion; peaceful assembly; freedom of association (including trade union rights and political parties); family; and participation in public affairs; but forbidding torture; "cruel, inhuman or degrading treatment or punishment"; slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

d. International Covenant on Economic, Social and Cultural Rights

The Covenant on Economic, Social and Cultural Rights establishes international minimum standards for States which have ratified this text to take steps to respect, protect and fulfil economic, social and cultural rights. This Covenant requires States parties to devote the maximum of their available resources to the most efficient and rapid manner in order to ensure the full, and in some cases progressive, realization of the rights it recognizes. The rights ensure in the Covenant include: the right to gain a living by work; to have safe and healthy working conditions; to enjoy trade union rights; to receive social security; to have protection for the family; to possess adequate housing and clothing; to be free from hunger; to receive health care; to obtain free public education; and to participate in cultural life, creative activity, and scientific research. The Covenant also strictly prohibits discrimination with respect to economic, social and cultural rights and ensures the equal rights of men and women to the enjoyment of these rights.

e. Specialized treaties

The UN has further codified and more specifically defined international human rights law in a number of treaties relating to various subjects initially identified by the International Bill of Human Rights. Treaties create legal obligations for those nations that are party to them, but are generally not binding on the international community as a whole. Treaties may, however, create general international law - that is binding on all states - when such agreements are intended for adherence by states generally, are in fact widely accepted, and restate general principles of law.

Aside from the UN Charter and the International Bill of Human Rights, the most significant UN treaties that have received enough ratifications or accessions to enter into force include (in order of their date of entry into force):

Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention);

Convention relating to the Status of Refugees (Refugee Convention);

Protocol relating to the Status of Refugees (Refugee Protocol);

International Convention on the Elimination of All Forms of Racial Discrimination (Race Convention);

Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention);

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention);

Convention on the Rights of the Child (Children's Convention); and

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Second ICCPR Protocol).

In order for a treaty to apply to a particular country, the State (i.e. the country) must have ratified or otherwise formally adhered to the treaty. Hence, it is important for the HRO to check whether the State where the UN field operation is established has ratified the treaty. Some States attach reservations or other limitations on their ratification. Accordingly, it is also important to verify whether such a reservation/limitation has been asserted by the State as to the rights which might be relevant to a HRO's work. It should be noted that even if a reservation has been asserted, the reservation may be invalid if it violates the object and purpose of the treaty.

f. Treaty bodies

Pursuant to six of the principal human rights treaties, committees have been established to oversee their implementation. Those six treaty bodies are the Human Rights Committee (under the Civil and Political Covenant); the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of Discrimination Against Women; the Committee Against Torture; and the Committee on the Rights of the Child. The six treaty bodies regularly review reports by States parties as to their compliance with the respective treaties. Most of these bodies issue general comments and recommendations that reflect their experience in reviewing the States reports. In this way, they can provide authoritative interpretations of the treaty provisions. In addition, in periodically examining the extent to which the treaties have been implemented by States parties, through the analysis of the State reports, the treaty bodies issue concluding observations which describe and address particular areas where States parties should change legislation, policy and practice in order to promote compliance with the treaty in question. Concluding observations are often a valuable source of information of human rights workers. Further, three of the treaty bodies -- the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and the Committee Against Torture -- may under certain conditions receive individual communications complaining about violations of those treaties and thus issue adjudicative decisions interpreting and applying treaty provisions. While the other treaty bodies cannot yet receive formal complaints in the form of individual communications, they do issue pronouncements interpreting and applying treaty provision, as well as indicating - albeit often in an ad hoc manner - that State parties should alter behaviour in order to secure compliance with their treaty obligations.

g. Related UN non-treaty instruments

In addition to treaties, the United Nations has overseen the development and adoption of dozens of declarations, codes, rules, guidelines, principles, resolutions, and other instruments that serve to interpret and expand on the general human rights obligations of Member States under Articles 55 and 56 of the UN Charter and may reflect customary international law. The Universal Declaration of Human Rights is the most prominent of those human rights instruments, which not only provides an authoritative, comprehensive, and nearly contemporaneous interpretation of the human rights obligations under the UN Charter, but also has provisions which have been recognized as reflective of customary international law binding on all States irrespective of whether they are party to the treaties which also contains those provisions. Among the other prominent instruments which are not treaties but which are of great importance in the field of human rights (in order of their date of adoption) are:

Standard Minimum Rules for the Treatment of Prisoners;

Declaration on the Rights of Disabled Persons;

Code of Conduct for Law Enforcement Officials;

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;

Standards Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")

Declaration on the Right to Development;

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment;

Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions;

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

Declaration on the Protection of All Persons from Enforced Disappearances;

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities;

Declaration on the Elimination of Violence Against Women;

Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

h. Other United Nations treaties and instruments

The United Nations is not the only global organization which has issued or facilitated the issuance of worldwide human rights standards. Others include UN specialized agencies (such as the International Labour Organization (ILO) and the UN Educational, Scientific, and Cultural Organization (UNESCO)) as well as the International Committee of the Red Cross (ICRC).

As one of the oldest existing intergovernmental organizations, ILO has promulgated 183 recommendations and 176 conventions, including several treaties relating to human rights. The UNESCO has promulgated several treaties related to human rights, for example, the Convention against Discrimination in Education, 429 U.N.T.S. 93, entered into force May 22, 1962.

i. Geneva Conventions and Protocols

The International Committee of the Red Cross has, since the mid-19th century, convened governmental conferences to draft treaties protecting soldiers and sailors wounded in armed conflict, prisoners of war, and civilians in times of war. These treaties constitute the core of international humanitarian law which is designed to ensure respect for general principles of humanity during periods of international and non-international armed conflict. In the context of armed conflicts, international humanitarian law provides a stronger and far more detailed basis for the protection of human rights than the International Bill of Human Rights and other UN human rights instruments.

The principal multilateral treaties that legislate international humanitarian law -- the four Geneva Conventions of 1949 -- have been ratified by more governments than other human rights treaties, aside from the UN Charter and the Convention on the Rights of the Child. The two Additional Protocols of 1977 extend and make more specific the protections of the 1949 Geneva Conventions to international and non-international armed conflicts. The Conventions and Protocols are as follows:

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention)

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention)

Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention)

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention)

Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I)

Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II)

Many provisions of the four Geneva Conventions, the two Protocols, and the Hague Conventions of 1899 and 1907 are broadly accepted as restating customary international humanitarian law applicable to all countries. Humanitarian law applies specifically to armed conflict situations, which would ordinarily qualify as "public emergencies".

j. Limitations on rights

Under certain specific conditions set forth in the relevant international human rights treaties, limitations can be imposed by States on the exercise of some human rights. It should be clear, however, that limitations on rights should be seen as the exception, rather than the rule. Limitations on rights, where they are permitted, are specified in the texts of the various human rights treaties. In general, such limitations and restrictions must be those which are determined by law and necessary in a democratic society to:

• ensure respect for the rights and freedoms of others; and
• meet the just requirements of public order, public health or morals, national security or public safety.
  

Limitations on rights imposed outside or beyond the above-mentioned conditions are not tolerated by international human rights law.

k. States of emergency and derogations

Under the specific and strict conditions indicated in Article 4 (1) of the International Covenant on Civil and Political Rights, international human rights law allows States to derogate from (that is, temporarily suspend) rights during periods of "public emergency". Article 4 (1) of ICCPR states:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

There is, however, a group of rights which can never be restricted nor derogated - including in the situation described in Article 4 of ICCPR. These non-derogable rights include: the rights to be free from arbitrary deprivation of life; torture and other ill-treatment; slavery; imprisonment for debt; retroactive penalty; non-recognition of the law; and infringement of freedom of thought, conscience, and religion (Article 4 (2)).

ICCPR provisions underline the exceptional nature of derogations from rights guaranteed in the Covenant. The substantive and procedural conditions under which derogations from rights are permitted by international law should be carefully noted:

existence of a threat to the life of the nation;

official proclamation of the state of emergency;

derogations to be strictly required by the exigencies of the situation;

derogations not to be inconsistent with other international obligations of the State;

derogations not be discriminatory;

non-derogable rights to be respected.

Article 4 (3) further requires that States introducing derogations from rights should immediately inform, through the UN Secretary-General, the other States Parties to ICCPR of the provisions from which they have derogated and of the reasons for the derogations.

l. Applicability of international human rights and humanitarian law

As explained above and in Chapter I, international humanitarian law is that body of international law which applies to situations of armed conflict - both international and non-international. It establishes protections for individuals and limits on methods and means of warfare by belligerent States.

In times of conflict, human rights law continues to apply. However, since armed conflict situations would typically qualify as "public emergencies" as defined by Article 4 of ICCPR, it is possible and likely that in such situations restrictions and derogations to human rights may be introduced by States (under the conditions mentioned above). It is therefore likely that the highest level of protection to individuals in situations of armed conflict be provided by international humanitarian law provisions.

The following table highlights the applicability of international human rights and humanitarian law in various situations, corresponding to different levels of conflict:

Applicability of Human Rights and Humanitarian Law ⁽¹⁾

m. Most protective standard

Since there are inconsistencies and gaps between the protections afforded by various human rights and humanitarian law instruments, as well as by national and local laws, the individual should be entitled to the most protective provisions of applicable international, national, or local laws. Accordingly, if humanitarian law affords better rights protections than human rights law, humanitarian law should be applied -- and vice versa.

n. Regional protection of human rights

In addition to the UN mechanisms for implementing human rights, regional structures now operate in Africa, the Americas, and Europe. The rights protected by these structures derive from, and are similar to, those of the International Bill of Human Rights, but each of the structures has developed unique approaches to seeking assurance that the rights are put into practice. While the following materials often focus on UN and other worldwide standards, regional standards may be quite important in particular circumstances, e.g. because the country has ratified significant regional human rights treaties which the Government considers more persuasive or because those regional instruments are given prominence in the agreement with the UN human rights operation (for example, the Dayton Agreements on the conflict in Bosnia and Herzegovina confer the European Convention for the Protection of Human Rights and Fundamental Freedoms with equal status vis-à-vis domestic law). The three main regional treaties ⁽²⁾ on human rights which are referred to in this Manual are the following:

African Charter on Human and Peoples' Rights (Banjul Charter)

American Convention on Human Rights (American Convention)

European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention)

2. Relevance of international standards to the identity of the human rights field operation and to its effectiveness

As indicated above, this Manual focuses on international human rights norms because they ordinarily define the mandate of the human rights operation. See also Part III, Chapter IV. B "Identification of and Prioritization of Efforts Regarding Human Rights Violations". Further, those norms define the international character of the field operation, are capable of being explained in a manual intended to cover situations anywhere in the world, and are most likely to be persuasive as international minimum standards.

a. International character of the operation

Legitimacy is the most important asset of a human rights field operation. It rests on the understanding that the operation is just and is representative of the will of the international community as a whole rather than some partial interest. This legitimacy is further enhanced by the composition of the field operation, typically including personnel from a broad spectrum of countries.

The basis of human rights field operations in international law provides further support for the legitimacy of the operations as reflecting the will of the international community. Indeed, it would be unlikely that the Government or the people of the country in which the operation is located would find HROs convincing if each officer argues that the Government should follow the human rights approaches of her/his own nation. The international minimum standards provide a point of basic agreement not only among nations, but also among the HROs as to what they should monitor, promote, or recommend.

b. Usefulness of international standards

This Training Manual focuses on worldwide human rights standards because field operations may be mounted anywhere in the world and it would, as a practical matter, be very difficult to cover all the regional and national human rights standards which might be relevant in a particular situation. HROs should not, however, conclude that this Manual discusses all the relevant standards.

While the mandate of a UN operation is based upon UN human rights standards such as those discussed in this Manual, an agreement between the Government and the UN may define the mandate by referring also to other international norms, regional human rights treaties, the constitution of the country, or other standards. Indeed, if the mandate refers to those non-UN standards or if the non-UN standards are more protective or persuasive, HROs should become acquainted with whatever standards are most helpful to their work. For example, in some countries regional standards may be better known and better respected than nearly identical international standards. In those circumstances, HROs would be well advised to use regional standards. Similarly, the constitution or national law may incorporate regional standards, so that they should be prominently used. Another example might be found in a country in which the constitution or the national law reflects the substance of international standards. Indeed, from the perspective of the individual in most countries, the most important means of protecting human rights and for implementing international law is through the national legislation, courts, and administrative agencies. The HRO may be more effective in referring to the constitution or national law to achieve protection for human rights.

A third example of the usefulness of non-UN human rights standards might be found in a country where the constitution, national law, or practice is even more protective of human rights than international law. After all, human rights treaties provide only international minimum standards. There is nothing to prevent a country from giving greater human rights protection than international standards provide. As indicated above, the individual should be entitled to the most protective provisions of applicable international, national, or local laws. Accordingly, the HRO should use whatever standards are most protective.

In general, however, HROs will find that there is more protection for human rights under international law than under national law and practice. Accordingly, officers need training on how to invoke the broader protections and profit from international insights as to how human rights can be implemented. The following Chapter provides a basis for such training.

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1. Standard OHCHR Training Packages for Police and for Peace-keepers

2. For a comprehensive collection of regional human rights instruments, see United Nations Office of the High Commissioner for Human Rights, Human Rights: A Compilation of International Instruments - Volume II, Regional Instruments, New York and Geneva, 1997.