Global Human Rights

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About the Author

Dr. Marchéta Wright’s research and teaching focus has been on human rights and the political activities of indigenous peoples since graduate school (University of Maryland) in the early 1980s—grounded in feminisms and a 'tree-hugging' environmental orientation. Canisius College (Buffalo, NY) saw the first 18 years of her academic career. She has taught at Lynn University since 2004.

Most recently, after sabbatical field research in Kenya and Ladakh, India, (2016) Wright's inquiries have expanded to include gender roles and their political implications among indigenous communities in a more explicit manner. In addition, recent research has expanded to a comparative analysis of various indigenous peoples’ political engagement and the intersection of gender inclusivity. Finally, the nexus of CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women) and the UNDRIP (Declaration on the Rights of Indigenous Peoples) with respect to indigenous women’s rights has become a focal point. The late 1990s and early 2000s provided the foundations for these efforts when Wright attended various sessions of the Working Group on the Draft Declaration on the Rights of Indigenous Peoples, Working Group on Indigenous Populations and the Permanent Forum for Indigenous Issues of the UN in Geneva and New York City. Her research then examined the political agency of indigenous peoples — particularly in regional and global contexts (including the UN) — and how it shapes global affairs and theories of international relations.

The scope of her teaching encompasses global human rights, global environmental politics, IR theories, political theories and ideologies, the politics of indigenous peoples and international law. In Lynn University’s core curriculum — the Dialogues — Wright’s sections of Dialogues of Justice and Civic Engagements emphasize indigenous peoples’ empowerment and civic engagement.

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ASEAN: Association of Southeast Asian Nations    AU: African Union    CANZUS: States of Canada, Australia, New Zealand, and the U.S. that acted as a bloc during the UNDRIP negotiations    CAT: UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment    CEDAW: Convention on the Elimination of All Forms of Discrimination against Women    CERD: Convention on the Elimination of all Forms of Racial Discrimination    CRC: UN Convention on the Rights of the Child    ECOSOC: UN Economic and Social Committee

EU: European Union

ICC: International Criminal Court    ICCPR: International Covenant on Civil and Political Rights    ICESCR: International Covenant on Economic, Social and Cultural Rights    ICJ: International Court of Justice    ICRC: International Committee of the Red Cross    IGO: Intergovernmental organization    ILO: International Labor Organization

MENA: Middle East and North Africa states

NGO: Nongovernmental organization

OAS: Organization of American States   

List of Abbreviations

UDHR: Universal Declaration of Human Rights    UNHRC: UN Human Rights Council    UNDRIP: UN Declaration on the Rights of Indigenous Peoples    UNESCO: UN Educational, Scientific and Cultural Organization     UNGA: UN General Assembly    UNHCR: UN High Commissioner for Refugees    UNICEF: UN Children’s Fund (formerly the UN International Children’s Emergency Fund)    UNPFII: UN Permanent Forum on Indigenous Issues    UNSC: UN Security Council    WGIP: UN Working Group on Indigenous Populations    WHO: World Health Organization    WWII: World War II

To begin…

…the purpose of this text is threefold. Most basically, it provides an initial orientation to international and global human rights via an annotated compilation of core international human rights documents: treaties, conventions, covenants, and declarations. Further, taken in its entirety, it illustrates and comments on the historical evolution of human rights law1 in international relations across the six foundational categories or types of human rights: (1) civil and political; (2) economic, social and cultural; (3) individual; (4) collective; (5) relative; and (6) universal. The discussion of each international agreement is grounded in its historical timeframe to emphasize some of the factors that influenced or motivated the drafters of that agreement. The documents and their commentaries are organized into three distinct sections: the International Bill of Rights, Crimes against Humanity, and those documents enshrining rights for specific groups of people. Section I presents the Universal Declaration of Human Rights (UDHR, 1948), the International Covenant on Civil and Political Rights (ICCPR,

1966), and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), which collectively are recognized as the International Bill of Rights. Section II provides an analysis of international agreements concerning crimes against humanity: the UN Convention on the Prevention and Punishment of the Crime of Genocide and the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. Section III then offers analysis on several international agreements designed to protect and promote human rights for specifically identified marginalized individuals, groups, and peoples — for example, indigenous peoples, children, and refugees. Finally, the analysis throughout weaves together the various documents’ texts with past and current human rights situations, cases, and events, as well as the actions and inactions of states, intergovernmental organizations (IGOs), nongovernmental organizations (NGOs), peoples, and individuals.

Introduction: Human Rights Foundations

Some Human Rights & International Law Basics

Regarding terminology, and perhaps most essentially, ‘global’ and ‘international’ are not interchangeable. The latter refers to the actions between countries, from diplomacy and cultural exchanges to war. In contrast, the former expands this realm of states to include non-state participants such as individuals, corporations, indigenous peoples, etc. Similarly, there is a significant difference between a state, a nation, and a nation- state. Each is defined in the glossary. Such distinctions are often muddied or even ignored in common discussion (even among government officials) and by the media. Nonetheless, it is an important one to be aware of and correctly use the two terms. Other central concepts are sovereignty and interdependence; again, each can be found in the glossary.

Human Rights Core Concepts

Specifically turning to human rights, an equally as fundamental distinction exists between ‘rights,’ ‘wants,’ ‘needs,’ and ‘privileges’. Rights are entitlements; a person, by virtue of being a human being, is guaranteed certain things such as voting, religious/spiritual beliefs and practices, language, etc. Wants are simply desires, and privileges are seen as extensions of those — “getting what you want.” For example, no one has the right to a driver’s license but may receive the privilege of earning one upon completion of adequate training. Finally, certain basic needs such

as food, water, clothing, and shelter are typically included in human rights. However, since the latter part of the 20th century, arguments have arisen that the denial of such things is an existential threat to individuals and humanity as a whole; therefore, they ought to be prioritized above all else.

Finally, ‘protecting,’ ‘promoting,’ and ‘violating’ human rights each require some attention. Protecting human rights entails the active safeguarding of specific rights, ensuring they are implemented, that people may actually exercise them, and that they are enforced. Promoting human rights centers on education — individuals must know what their rights are to guarantee they can benefit from them. Ultimately and regrettably, human rights are violated either through active abrogation or failure to undertake necessary implementation policies and strategies (not so ‘benign’ neglect).

A final conceptual aspect of human rights ought to be identified, but its full development is beyond the scope of this book. African, Asian, and Middle Eastern countries often critique

Interactive I.1 International Bill of

Human Rights Timeline

Tap on the thumbnail above to explore an interactive timeline documenting the International

Bill of Rights.

ibooks:///#page(186)

human rights theory, law, policy, and practice as being products of ‘western’ states’ ideologies. A further assertion is that those same western states impose their standards on the rest of the world. Such arguments have some evidentiary support. Anti- democratic movements in various North American and European states (in some cases supported by government officials) that curtail or eliminate basic civil and political rights reveal the hypocrisy of criticizing states in other regions for their human rights transgressions. As discussed in Chapter 1 on the Universal Declaration of Human Rights (UDHR), this debate came to the forefront during the UN inaugural human rights efforts in 1947.

International Human Rights Agreements

When reading and analyzing international legal documents, and human rights documents in particular, noting a few basic features is helpful. Most fundamentally, not all such documents are legally binding. Declarations, such as the Universal Declaration of Human Rights (UDHR), are not; they are aspirational, goal-setting in nature and states cannot be held legally accountable for noncompliance. Treaties, covenants, and conventions, however, are legally binding and therefore enforceable.

Each international agreement—also known as an instrument —essentially has two parts: the preambulatory clauses and the operative or action clauses. The former lays out historical precedents, other applicable international law, and/or current

relevant situations. Following the preamble, the operative clauses then stipulate definitions and specific human rights protections to be afforded. The operative clauses also may include the creation of an oversight or enforcement mechanism and, finally, specify the conditions for the agreement to become enforceable. Thus, there are two critical benchmark dates for each agreement: the date of adoption by the UN General Assembly or other primary originating body (e.g., Organization of American States, European Union), and the date on which the agreement comes into force— when it becomes legally binding, if applicable. The process for the UN may be summarized and illustrated as follows:

Finally, if a country decides to ratify/adopt an international agreement, it may choose to do so “with reservations.” That is, a state may choose to withhold approval of certain articles or

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clauses within the document while still accepting the overall agreement.

Threads & Themes

Historical context affords an appropriate initial thread to follow throughout this text. History certainly does not begin with WWII and the inception of the United Nations (UN), nor did ideas and practices of what we now refer to as ‘human rights.’ Nonetheless, that pivotal conflict and the resultant UN gave rise to what is commonly acknowledged as contemporary international and global human rights. In this text , history as a theme takes on two distinct but connected manifestations. The first, already mentioned, is the overall evolution of human rights’ legal protections in international relations. Complementing this, each document examined herein must be understood in the contemporaneous time frame of its drafting and adoption. Each document’s analysis stems from and explicitly emerges from that historical context.

Tensions and intersections, together, form a second thread that ties together the various human rights legal instruments. One fundamental tension emerges as we consider the conundrum of the two pillars of the UN Charter: the goal to protect and promote human rights (Preamble, Article 1(3)) in the aftermath of WWII and the simultaneous recognition of the sovereign equality of states (Article 2(1)) and self-determination (Article 1(2)), particularly for newly independent countries emerging from colonialism.

Intersections of some human rights documents are exemplified in at least two ways. First, textual similarities exist such as that found in Article 1 of both the ICCPR and ICESCR. A second type of intersection emerges from the potentially concurrent application of multiple documents to a given situation. This is exemplified by the rights of the girl child as protected by both the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).

The ever-present dual challenges of implementing and enforcing legal standards, exacerbated by state sovereignty mentioned above, arise as a third thread or theme. Most essentially, international human rights law stems from agreements between states—those remain the principal participants in international and global relations in this regard. However, it is clearly evident that the actions of non-state participants such as corporations, NGOs, militias, terrorist entities, and individuals all have profound repercussions for global human rights. Thus, ensuring compliance with international human rights standards rests on states who must enforce the laws on non-state actors with questionable accountability. This introduction’s initial considerations create a backdrop for our discourse on global human rights—global and not international precisely because ultimately protecting and promoting human rights rests with each of us and is not the sole purview of states.

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Discussion Questions

1. Why is the distinction between ‘international’ and ‘global’ important, especially regarding human rights?

2. Should all international human rights agreements be legally binding? What might be the reasons for having non-binding declarations?

3. Should states be able to accept an international agreement ‘with reservation’? What are some possible advantages and disadvantages of this practice?

4. What differences exist between protecting human rights within a country and trying to do so in the international/global arena?

Interactive I2 Core International Human Rights Instruments

Timeline

Tap on the thumbnail above to explore an interactive timeline

documenting core international human rights instruments.

Section I: International Bill of Rights

Together, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) form the pillars of the international human rights framework. Not only are these documents the cornerstone of virtually all human rights laws, policies, and practices, but their genesis is deeply linked to each other and the seemingly immutable different approaches to the notion of human rights by various people and states.

Each of the chapters in this section offer an analysis of one of the three core human rights documents, taken in chronological order. In doing so, this section begins tracing the three themes presented in the introduction: (1) historical context, (2) intersections and tensions, and (3) challenges for implementation and enforcement. Historically, World War II and its antecedents form the immediate backdrop for the UDHR, while the Cold War was the dominant geopolitical dynamic for the ICCPR and ICESCR, which were concurrently drafted and then adopted in 1966.

The tensions, then, become obvious given such historical contexts but, perhaps paradoxically, the intersections of the three agreements simultaneously emerge. It is important to note that, despite the simultaneity of the ICCPR’s and ICESCR’s development, each is discussed in separate chapters. Finally, the entrenched nature of state sovereignty did then, and continues to,

hamper most implementation and enforcement efforts. Ultimately, these three threads/themes and their logical corollaries create the tapestry of international human rights laws, policies, and practice.

Chapter 1

UNIVERSAL DECLARATION of HUMAN RIGHTS

Adopted: Dec. 10, 1948 Entry into Force: Non-binding

Initial Considerations

The history of the UDHR’s coming into existence, as delineated in this chapter, illustrates these fundamentally distinct approaches that form a constant thread through the entire human rights discourse. Nonetheless, the core values and interests shared by the global community resulted in a commitment to human rights in general and to the UDHR in particular.

The UDHR is a direct result of the experiences of World War II. Within months of the end of that war, the international community joined forces and formed the United Nations (24 October 1945) as a forum for cooperation and conflict resolution. This act was a powerful symbol of the international community’s dedication to never allow the atrocities of the war to be repeated. The UN Charter makes several references to human rights but never offers a definition. It was seen as an implicit call for a declaration on human rights such as the UDHR. Hence, the UN Economic and Social Council (ECOSOC) established the Commission on Human Rights charged with the creation of an international bill of rights.

The Commission first met in January of 1947. It was made up of government representatives and was masterfully led by Eleanor Roosevelt, former First Lady of the U.S. and the representative from that country. A drafting committee was formed within the Commission on Human Rights to facilitate the

task.1 The negotiations quickly laid bare the ideological differences between the newly forming geopolitical blocs of the East and the West. The drafting committee promptly decided, albeit with reluctance, to split the task in two. The Commission on Human Rights would produce a general manifesto of human rights but would leave questions of enforcement to a detailed covenant which, at the time, was expected to be completed within two years.2 For the first 20 years of its existence, the Commission felt that receiving any complaints of human rights violations was outside of its mandate. Its focus, then, was on further developing human rights norms.

With enforcement matters removed from the discussions, the drafting was expected to proceed without much quarrel. Yet the deliberations revealed substantive divides between Western Bloc democracies that wanted to affirm political freedoms, and the Eastern Bloc that focused on economic and social rights. The ideological underpinnings of the committee members threatened to derail the drafting process several times.3 Eleanor Roosevelt’s skillful diplomacy and her own broad understanding of human rights ensured that the UDHR, after several drafts, contained both first generation civil and political rights (Articles 1-21) and second generation economic, social and cultural rights (Articles 22-28).4

The drafting process was completed in June of 1948; the General Assembly (GA) then took up the draft in its September meeting in Paris. The GA’s Third Committee — Social, Humanitarian, and Cultural Issues — spent 81 sessions on the draft and considered 168 resolutions with amendments.5 In the end, after rehashing many of the same arguments that the drafting committee had gone through, the draft was approved with very little change. On 10 December 1948, the GA, by resolution 217 A (III), approved the UDHR with a vote of 48 to 0 with 8 abstentions.6

The adoption of the UDHR in 1948 must be seen as a colossal achievement as it occurred at a time when the world was divided into different geopolitical blocs and was addressing the aftermath of the first half of the 20th century. In particular, after a generation of catastrophes—two world wars, the Great Depression, and the failure of the inter-war League of Nations— the international community dedicated itself to bringing about a world in which peace, hope, and freedom would prevail. The creation of the UN and the UDHR are expressions of hope and determination to build a better future. And, despite all ideological differences, the international community was able to devise a blueprint of what rights are essential to human life. The reflection of Chile’s representative on the Commission on Human Rights, Hernán Santa Cruz, captures the momentousness of the UDHR’s adoption:

I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality. In the Great Hall… there was an atmosphere of genuine solidarity and brotherhood among men and women from all latitudes, the like of which I have not seen again in any international setting.7

Key Elements

At first glance, the UDHR appears to be based on a long genealogy of documents addressing rights. However, the UDHR is not merely a list of rights that should accrue to each human being. Taken as a whole, the UDHR is a set of principles that are related to each other and to overarching ideals of justice and fairness. Given the UDHR’s aspirational nature, this document should always be considered in its entirety. It is divided into a preamble and 30 articles.8 The preamble, in its eight recitals, advances the recognition of human dignity, the unity of humanity, and the dedication to peace and prosperity. Further, and most importantly, it announces the universality of human rights and acknowledges the hurdles ahead by pointing out that a “…

common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge.”9

Articles 1-21 address civil and political rights. These include the right to life, bans on slavery and torture, due process rights such as equality before the law and freedom from arbitrary arrest, freedom of movement, freedom of assembly, and the right to participate in government. Articles 22-28 focus on economic, social and cultural rights. These include the right to work and equal pay, the right to adequate standard of living and education, and the right to participate in the community’s cultural life. A deeper consideration of these two categories of human rights is contained in Chapter 2 discussing the ICCPR and Chapter 3 discussing the ICESCR.

While the UDHR is not the first international agreement to address human rights,10 it is essential to point out that the UDHR is the first human rights document that skillfully combines a wide variety of rights into one, thereby acknowledging their inherent intersections. Further, the UDHR’s inclusion of duties expands the overall conceptualization of human rights by purposefully incorporating obligation as a core element. Specifically, Article 29 spells out that “[e]veryone has duties to the community.” The realization and free enjoyment of human rights, then, is not exclusively dependent upon the state but on each individual within that state. The primary responsibility for implementing human rights is a shared responsibility between individuals and

the state—between society and government. This adroit linkage of individual and society was a strategic nod to non-Western societies that are more communally oriented. It also is a subtle recognition of the fact that the protection and promotion of human rights cannot exclusively depend upon an international enforcement machinery or the goodwill of states’ governments. Rather, “…the responsibility for protecting human rights belonged not only to the nation states, but to persons and groups below and above the national level.”11 This sentiment is captured in the following quote by Eleanor Roosevelt:

Where, after all, do human rights begin? In small places, close to home-so close and small that they cannot be seen on any maps of the world....Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.12

Most instructively, hence, the UDHR is an exemplary blueprint for creating a more just world in which all people can enjoy the rights and freedoms essential to human life. But it is human rights activism—teaching, protesting, lobbying, litigating—that will ensure progress.

Conclusion

Indubitably, the UDHR is a revolutionary document that significantly furthered the cause of human rights. Human rights

consciousness has increased considerably, in part due to the UDHR’s translation into more than 500 languages. Yet it is not immune to criticism. One of the primary points of disapproval stems from its timing. The UDHR was drafted at a time when many parts of the world were still colonized. The African continent, made up of 54 states today, was represented by four states (Egypt, Ethiopia, Liberia, and South Africa) in the UN at the time of the UDHR’s drafting and adoption. Large swathes of Asia and the Pacific were under foreign tutelage as well. Only independent states qualify for UN membership. Today’s UN membership of 193 states is juxtaposed with a membership of 58 states in 1948. The UDHR, then, is often criticized for being a product of the West and/or the North. It is argued that the conceptualizations of human rights are reflective of an individualistic orientation of the West and ignore the more communalistic orientation of African and Asian societies.

This criticism is compounded by the fact that the legally non-binding UDHR has become the foundation for a rich body of international human rights law. Many treaties, such as the ICCPR and the ICESCR, have emerged in the ensuing decades. These treaties have become more focused and specialized with respect to the groups being protected and the rights addressed. While a much broader representation of the world’s population has been engaged in the formulation of those treaties as compared to the UDHR, the fact that the UDHR is at the core of all human rights law remains problematic for some.

An additional point of criticism is that many articles are open to interpretation. Literal readings of the UDHR give rise to a plethora of questions. Article 5 stipulates that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” What constitutes degrading treatment? Is “inhuman” defined identically across societies? Does the right to work specified in Article 23 mean that the state government is an employer of last resort? Could the right to freedom of movement and residence contained in Article 13 lead to the overturning of local zoning laws? What is “full age” at which men and women may enter marriage (Article 16)? These questions demonstrate that the actual implementation of human rights may depend on a more thorough explication of each distinct human right. Given that the UDHR was a starting point—a declaration of intent that the international community could agree upon—it was clear that the practicality of guaranteeing these human rights would require more thought. Furthermore, one could argue that the apparent vagueness of the document ensured agreement while allowing for interpretation appropriate to each state. This, of course, is a precarious argument to make if the universality of human rights is the overriding concern.

A third and final point of criticism raised herein is the ostensible meaninglessness of the UDHR. The UDHR is a declaration of intent, not of law. It imposes no legal obligation and requires no actions of enforcement. This is exacerbated by Article 2 of the UN Charter which affirms the doctrine of state

sovereignty. The UN is not authorized to “…intervene in matters which are essentially within the domestic jurisdiction of any state … .”13 As long as state sovereignty remains the guiding principle of international relations, so the criticism goes, the protection and promotion of human rights cannot be fully realized. But perhaps that is exactly the reason why the drafters of the UDHR included language that made it clear that the responsibility to implement and guarantee human rights rests with everyone!

Universal Declaration of Human Rights

Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948

Preamble

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men

Eleanor Roosevelt holding the Human Rights Declaration (November 1949)

and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, therefore,

The General Assembly,

Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11

1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each State.

2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 21

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

2. Everyone has the right to equal access to public service in his country.

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

2. Everyone, without any discrimination, has the right to equal pay for equal work.

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

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.

Article 30

Nothing in this 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.

Signatories

In 1948, when the vote to adopt the UDHR took place, the UN’s membership stood at 58 states. Of those 58 states, 48 voted in favor, zero against, and eight abstentions (two states were not present). The abstaining states were Byelorussian Soviet Socialist Republic, Czechoslovakia, Poland, Saudi Arabia, Ukrainian Soviet Socialist Republic, Union of South Africa, Soviet Union, and Yugoslavia. Tap here to view the voting record.

Discussion Questions

1. Do you think the drafters were wise to set aside issues of enforcement when writing the UDHR? Explain.

2. After reading the UDHR, are there any obvious omissions regarding specific human rights or a lack of specificity regarding those that are included? What are some articles that illustrate your comments?

3. What specific articles are open to interpretation, other than those mentioned above, that could lead to governments simply ignoring those rights?

4. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the UDHR?

https://digitallibrary.un.org/record/670964?ln=en&p=Resolution+217(III)+A

Chapter 2

INTERNATIONAL COVENANT on CIVIL and POLITICAL RIGHTS

Adopted: Dec. 19, 1966 Entry into Force: March 23, 1976

Initial Considerations

One of the ‘takeaways’ from the UDHR (see Chapter 1) is its inclusivity regarding two of the categories of human rights—civil and political; and economic, social and cultural—albeit with an emphasis on individual rather than collective rights (see Chapter 10 discussing UNDRIP). Another feature of international agreements, in particular human rights agreements, is that the initial document is often (not always) a declaration — an aspirational document that is not legally binding. Such documents are then followed in subsequent years by a covenant or convention that is legally binding.1 The underlying concept is that the declaration allows states parties the time to adjust to the changes and strictures of the new agreements prior to them becoming legal mandates. For example, states will need to begin the process of putting necessary compliance measures in place such as changes to domestic laws, policies, and practices.

These two features raise the following question. Given that the UDHR was a single document inclusive of both sets of rights (civil and political; and economic, social and cultural), and if the effort of the UN was to expand the UDHR into a covenant, then why do we have two covenants — the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)? The answer put succinctly: international political realities. The ICCPR along

with its ‘twin’ reflect the historical exigencies of the Cold War and the associated ideologies of the East and West at the time.

First, the common denominator. Geopolitically, in the Northern Hemisphere, from England in the West through tsarist Russia to Chinese and Japanese dynasties in the East, there is a centuries-long history of sloughing off heavy-handed monarchs and the oppressiveness of dictatorial, capricious leadership (including Rome both pre- and post-Christianity’s advent). Similar processes occurred across the Southern Hemisphere with the overlay of oppressive colonialism complicating the transitions. While the timelines differ, the broad motivations are the same: people responding to and rejecting oppression. Those responses, however, are precisely where the commonalities end. Again, very broadly put, notions of individualism emerged in the West by the 19th century. Thus, the responses had an ideological orientation of individualism and self-reliance tinged, arguably, with nascent notions of entitlement. In the East, responses remained grounded in firmly rooted cultural norms of community, civic duty, and obligation/responsibility. The community or collective orientation became manifest, for example, in the rhetorical use of Marx’s and Engels’ ideas (again, the mid-19th century) by V. I. Lenin, Leon Trotsky, Aleksandra Kollontai, and other leaders of the Russian Revolution that began in 1917.

So, what is the point of this historical meandering vis-à-vis global human rights and the two covenants adopted by the UN

General Assembly (UNGA) in 1966? When the drafting of the two covenants began in 1954, the world was deeply entrenched in the Cold War pitting the Soviet Union (U.S.S.R.—Union of Soviet Socialist Republics) and its post WWII Eastern allies against the United States and its Western allies. Two expressions perhaps illustrate the realities of that period. ‘Workers of the world, unite!’ captures the sense of community/collective action by which people can protect themselves from oppression, that is, sentiments expressed by the East. By contrast, ‘Pull yourself up by your bootstraps!’ underscores individual, independent, even solitary action to better yourself and end oppression—the West.2 Within this political ideological tension, then, the efforts began to draft a legally binding human rights agreement that built upon the UDHR.3

Deliberations, akin to those surrounding the UDHR, and similarly contentious along this geopolitical divide, quickly revealed that the U.S. and Western allies were prioritizing civil and political rights that have an underlying premise of individualism. For example, voting, freedom of speech, and rights pertaining to alleged criminal activity are intrinsically exercised by and attach to individuals. The U.S.S.R. and its Eastern allies wanted to prioritize economic, social and cultural rights — the right to work, healthcare, education, etc., and the shared responsibilities of people and government to contribute to that goal for all.4 Fearing a stalemate, the strategy shifted to separating the two sets of rights into two distinct documents. This enabled states to select

those rights that were deemed a priority and thus ensure that all states would be able to sign and ratify/accede to at least one if not both covenants.

Key Elements

Recall that civil and political rights are those human rights that pertain to a person’s legal role and status as a member of a society, and that stipulate limitations on governmental actions vis- à-vis the individual in this regard. Divided into four substantive parts, the ICCPR essentially details and expands upon those UDHR articles that focus on civil and political rights—roughly, Articles 1 through 21. Each of these rights are individual in nature; they attach to and are exercised by a single person. Given these two underpinnings — civil/political and individual rights — Part I, which is coterminous with Article 1, is indeed intriguing. It begins by stipulating a collective, not individual, right and uses language that reinforces this.

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (Article 1(1), emphasis added)

Self-determination, a collective right that attaches to the entire polity, is discussed in conjunction with the UNDRIP (Chapter 9). For now, noting its inclusion here is sufficient.

Further deviating from the two stated underpinnings, the article substantively focuses on economic, social and cultural rights. Despite the ideological tensions referred to at this chapter’s outset, the states parties agreed nonetheless that economic, social and cultural rights were of enough primary importance to be so stipulated at this early juncture. A final comment on Article 1: it is purposefully identical to Article 1 in the ICESCR. Such duplication again reinforces the separate but simultaneous drafting of the two covenants.

Part II of the ICCPR moves on to enumerate broad areas for adherence by states parties such as the alignment of domestic law with the Covenant. This particular matter bears some consideration. The language and substance—particularly of Article 2, paragraphs 2 and 3—can be interpreted as a circumvention of the “sovereignty dilemma” challenging implementation and enforcement efforts (our third theme/thread) referred to in Chapter 1. For example:

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, … to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. (Article 2 (2))

That is, states parties are to bring their domestic laws into compliance with international law, and not vice versa. Ultimately,

claims of state sovereignty to prevent compliance with the ICCPR are nullified by this stipulation.

The drafters finally turned to actual civil and political rights in Part III, Articles 6 through 27. Within the 21 articles, clusters or subsets of rights can be identified, for example judicial/criminal procedure or children’s rights. The first of these—judicial procedure or due process rights—presents the largest single subset of rights contained in the Covenant. Ten of the 21 substantive articles (almost half!) address such matters in whole or in part. The drafters may have been motivated to emphasize due process rights given some of the realities of that era. Both East and West were experiencing serious curtailments of judicial fairness and outright violations of constitutionally guaranteed civil and political rights. Eastern European states’ and the U.S.S.R.’s public statements expressing criticism of or opposition to the government were heavily suppressed and punished with imprisonment (not unlike current practices in the Russian Federation). Similarly, in the U.S. during the first half of the 1950s, egregious censorship of films, speech, and the press occurred in conjunction with McCarthyism. People lost their jobs and/or were arrested. Relatedly, voter suppression has plagued the U.S. since its inception with various periods seeing spikes since the additions of the 14th and 19th Amendments to the U.S. Constitution. All of this — coupled with dictatorial suppression of civil and political rights in Central and South America and parts of

Asia — would have provided ample incentive to enshrine due process rights in such an extensive way.

The ICCPR is ‘a first’ in the realm of international human rights agreements. Along with the ICESCR (Chapter 3), it establishes a treaty body. Part IV is dedicated to creating the Human Rights Committee as an oversight body for the Convention and its enumerated rights. Such treaty bodies have multifaceted purposes. Most fundamentally, they monitor compliance by states parties. Additionally, they may be empowered to accept complaints of violations and/or make recommendations for action/compliance. The creation of the Human Rights Committee partially redressed the explicit omission of monitoring/enforcement mechanisms in the UDHR. In this manner, as one of the three documents that comprise the International Bill of Rights, the ICCPR furthers the aspirational goals of the UDHR and is consistent with that declaration by entwining human rights with the duties and responsibilities of both government and individuals that comprise any given society.

Conclusion

As a final note, the ICCPR and ICESCR exemplify Burns Weston’s analysis of the historical development of international human rights, and in particular, his discussion of ‘generations’ of human rights. (Weston in Claude, 1989) More significantly, the codevelopment of the ICCPR and ICESCR emphasizes the mutually reinforcing and interdependent nature of civil/political and economic/social/cultural rights. Asbjørn Eide (in Claude,

1989) expounds upon this interpretation, and it is expanded upon in Chapter 3.

The ICCPR, and the ICESCR, initiated yet another practice in international human rights law: the use of the Optional Protocol. In general terms, optional protocols have one of two functions. Either they create enforcement mechanisms to enhance compliance with the original treaty, or they address a substantive area omitted from the original treaty. In either case, because they are addendums, only states parties to the original treaty may sign and ratify/ accede to them.

Regarding the ICCPR, there are two such protocols that reflect each of the two functions. Optional Protocol 1 creates a mechanism for individuals, not just states, to report perceived instances of non-compliance to the Human Rights Committee, thus expanding its original mandate. While Optional Protocol 1 was adopted by the UNGA in 1966 at the same time as the ICCPR, it is nonetheless a distinct document and subject to separate signature and ratification/accession. Optional Protocol 2, adopted in 1989, eliminates the death penalty and thereby expands the substantive human rights protected by the ICCPR.

50th anniversary poster of the ICCPR (1966-2016)

In multifaceted ways, then, the ICCPR’s development unarguably solidified and reified the UDHR. The drafters and ultimately the states parties to the ICCPR overcame contemporaneous and deeply entrenched ideological rigidities to assert that protecting and promoting human dignity, by necessity, must be above political posturing.

International Covenant on Civil and Political Rights

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, Entry into force: 23 March 1976, in accordance with Article 49

Preamble

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be

achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,

Agree upon the following articles:

PART I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self- Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve

discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary- General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant

does not recognize such rights or that it recognizes them to a lesser extent.

PART III

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or

commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3. (a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a

punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv) Any work or service which forms part of normal civil obligations.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall

be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;

(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.

Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and

impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has

been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Article 15

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Article 16

Everyone shall have the right to recognition everywhere as a person before the law.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as

are required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all

persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

PART IV

Article 28

1. There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided.

2. The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.

3. The members of the Committee shall be elected and shall serve in their personal capacity.

Article 29

1. The members of the Committee shall be elected by secret ballot from a list of persons possessing the qualifications prescribed in article 28 and nominated for the purpose by the States Parties to the present Covenant.

2. Each State Party to the present Covenant may nominate not more than two persons. These persons shall be nationals of the nominating State.

3. A person shall be eligible for renomination.

Article 30

1. The initial election shall be held no later than six months after the date of the entry into force of the present Covenant.

2. At least four months before the date of each election to the Committee, other than an election to fill a vacancy declared in accordance with article 34, the Secretary-General of the United Nations shall address a written invitation to the States Parties to the present Covenant to submit their nominations for membership of the Committee within three months.

3. The Secretary-General of the United Nations shall prepare a list in alphabetical order of all the persons thus nominated, with an

indication of the States Parties which have nominated them, and shall submit it to the States Parties to the present Covenant no later than one month before the date of each election.

4. Elections of the members of the Committee shall be held at a meeting of the States Parties to the present Covenant convened by the Secretary General of the United Nations at the Headquarters of the United Nations. At that meeting, for which two thirds of the States Parties to the present Covenant shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

Article 31

1. The Committee may not include more than one national of the same State.

2. In the election of the Committee, consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.

Article 32

1. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated.

However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these nine members shall be chosen by lot by the Chairman of the meeting referred to in article 30, paragraph 4.

2. Elections at the expiry of office shall be held in accordance with the preceding articles of this part of the present Covenant.

Article 33

1. If, in the unanimous opinion of the other members, a member of the Committee has ceased to carry out his functions for any cause other than absence of a temporary character, the Chairman of the Committee shall notify the Secretary-General of the United Nations, who shall then declare the seat of that member to be vacant.

2. In the event of the death or the resignation of a member of the Committee, the Chairman shall immediately notify the Secretary-General of the United Nations, who shall declare the seat vacant from the date of death or the date on which the resignation takes effect.

Article 34

1. When a vacancy is declared in accordance with article 33 and if the term of office of the member to be replaced does not expire within six months of the declaration of the vacancy, the

Secretary-General of the United Nations shall notify each of the States Parties to the present Covenant, which may within two months submit nominations in accordance with article 29 for the purpose of filling the vacancy.

2. The Secretary-General of the United Nations shall prepare a list in alphabetical order of the persons thus nominated and shall submit it to the States Parties to the present Covenant. The election to fill the vacancy shall then take place in accordance with the relevant provisions of this part of the present Covenant.

3. A member of the Committee elected to fill a vacancy declared in accordance with article 33 shall hold office for the remainder of the term of the member who vacated the seat on the Committee under the provisions of that article.

Article 35

The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee's responsibilities.       

Article 36

The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant.

Article 37

1. The Secretary-General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations.

2. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

3. The Committee shall normally meet at the Headquarters of the United Nations or at the United Nations Office at Geneva.

Article 38

Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously.

Article 39

1. The Committee shall elect its officers for a term of two years. They may be re-elected.

2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

(a) Twelve members shall constitute a quorum;

(b) Decisions of the Committee shall be made by a majority vote of the members present.

Article 40

1. The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights:

(a) Within one year of the entry into force of the present Covenant for the States Parties concerned;

(b) Thereafter whenever the Committee so requests.

2. All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant.

3. The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence.

4. The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant.

5. The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article.

Article 41

1. A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:

(a) If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter;

(b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;

(c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged;

(d) The Committee shall hold closed meetings when examining communications under this article;

(e) Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant;

(f) In any matter referred to it, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

(g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing;

(h) The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

(i) If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

(ii) If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In

every matter, the report shall be communicated to the States Parties concerned.

2. The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph I of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary- General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 42

1. (a) If a matter referred to the Committee in accordance with article 41 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission). The good offices of the Commission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant;

(b) The Commission shall consist of five persons acceptable to the States Parties concerned. If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two- thirds majority vote of the Committee from among its members.

2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties concerned, or of a State not Party to the present Covenant, or of a State Party which has not made a declaration under article 41.

3. The Commission shall elect its own Chairman and adopt its own rules of procedure.

4. The meetings of the Commission shall normally be held at the Headquarters of the United Nations or at the United Nations Office at Geneva. However, they may be held at such other convenient places as the Commission may determine in consultation with the Secretary-General of the United Nations and the States Parties concerned.

5. The secretariat provided in accordance with article 36 shall also service the commissions appointed under this article.

6. The information received and collated by the Committee shall be made available to the Commission and the Commission may call upon the States Parties concerned to supply any other relevant information.

7. When the Commission has fully considered the matter, but in any event not later than twelve months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned:

(a) If the Commission is unable to complete its consideration of the matter within twelve months, it shall confine its report to a brief statement of the status of its consideration of the matter;

(b) If an amicable solution to the matter on tie basis of respect for human rights as recognized in the present Covenant is reached, the Commission shall confine its report to a brief statement of the facts and of the solution reached;

(c) If a solution within the terms of subparagraph (b) is not reached, the Commission's report shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. This report shall also

contain the written submissions and a record of the oral submissions made by the States Parties concerned;

(d) If the Commission's report is submitted under subparagraph (c), the States Parties concerned shall, within three months of the receipt of the report, notify the Chairman of the Committee whether or not they accept the contents of the report of the Commission.

8. The provisions of this article are without prejudice to the responsibilities of the Committee under article 41.

9. The States Parties concerned shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-General of the United Nations.

10. The Secretary-General of the United Nations shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties concerned, in accordance with paragraph 9 of this article.

Article 43

The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 42, shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant

sections of the Convention on the Privileges and Immunities of the United Nations.

Article 44

The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

Article 45

The Committee shall submit to the General Assembly of the United Nations, through the Economic and Social Council, an annual report on its activities.

PART V

Article 46

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United

Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant.

Article 47

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART VI

Article 48

1. The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to the present Covenant.

2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary- General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States which have signed this Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 49

1. The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession.

2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 50

The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

Article 51

1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General of the United Nations shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they

notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes. 3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.

Article 52

1. Irrespective of the notifications made under article 48, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph I of the same article of the following particulars:

(a) Signatures, ratifications and accessions under article 48;

(b) The date of the entry into force of the present Covenant under article 49 and the date of the entry into force of any amendments under article 51.

Article 53

1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 48.

Signatories

Tap here to view the voting record for the International Covenant on Civil and Political Rights.

Discussion Questions

1. After reading the ICCPR, do you think that its content warrants it being a separate, distinct covenant? What are some examples to support your conclusion? Ultimately, then, do you agree or disagree with the decision to have two separate covenants for civil and political rights and economic, social and cultural rights? Explain.

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en

2. Why might the drafters of the ICCPR have focused on economic, social and cultural rights, as well as collective rights, in Article 1 rather than individual civil and political rights that are the primary purpose of the covenant?

3. Beyond bringing domestic law into alignment with the Covenant, what are the other broad themes or topics of Articles 2-5, and why might they have been stated so early in the Covenant?

4. What are the possible links between the historical context of the ICCPR’s drafting and the strong emphasis on judicial/ criminal procedure?

5. In general terms, is it better to create monitoring bodies within the treaty itself, as is the case with the ICCPR, or should they be created via an Optional Protocol? Explain.

6. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the ICCPR?

Chapter 3

INTERNATIONAL COVENANT on ECONOMIC, SOCIAL and CULTURAL RIGHTS Adopted: Dec. 19, 1966 Entry into Force: March 23, 1976

Initial Considerations

Chapter 2, discussing the ICCPR, asserts that creating two covenants “…enabled states parties to select those rights that were deemed a priority and thus ensure that all states would be able to sign and ratify/accede to at least one if not both covenants.” (Wright, 2022, 14) For every argument, there is at least one counterargument. The separation into two covenants arguably reinforced a false dichotomy or tension between civil/ political and economic/social/cultural rights. It created the milieu within which states parties could pick and choose what the government deemed desirable in contrast to meeting the actual human rights/needs of the people.

As explained by Asbjørn Eide (1989), governments and some human rights scholars claim that the latter set of rights are ‘more costly’ and therefore have to wait until the ‘easier’ civil/ political rights could be ensured. Eide’s analysis that this is a false narrative finds support insofar as some governments deny both sets of rights to particular segments of the population under the guise of ‘costs.’ Ultimately, a quite significant consequence of creating two covenants has been the refusal to acknowledge the ‘both/and’ (rather than ‘either/or’) intrinsic interdependence of the two sets of human rights. To clarify, without the right to speak freely about unmet needs and oppression, those needs such as food and water access, and health care go unrealized. But, without the ability to feed and clothe oneself via economic

security, freedom of speech and other civil/political rights are rendered unachievable for starving people.

Dr. Wangari Maathai, in her acceptance speech for the Nobel Peace Prize in 2004, explicated the inextricable nature of economic, social, and cultural rights and civil and political rights. In short, economic empowerment and social justice are simply interdependent with peace and space for democracy to flourish. (Maathai, 2004) Any analysis, then, of the ICESCR must be undertaken in this context. Concurrently, recall that all of the historical realities shaping the ICCPR were equally as influential for the ICESCR.

Key Elements

For good or ill, then, the UDHR gave rise to two separate but not entirely distinct legally binding covenants. The latter point becomes evident in that the drafting parties found value in ensuring that the language of the Preamble and Part I of each document is identical. Further, there are parallel elements in the ICCPR and the ICESCR regarding enumeration of specific rights, state obligations to guarantee such rights, and mechanisms for redress of grievance, reporting, and oversight of state compliance.

Concomitantly, the preamble to the ICESCR harks back to a core element of the UDHR.

The language explicitly calls upon individuals to recognize their duty and responsibility to protect and promote their own human rights and those of their community as a whole and its members.

To reiterate, Part I is literally identical in the two covenants and Part II of each, while using somewhat different language, enumerates broad areas for adherence by states parties: commitment of resources, equality of application, and reasonable limitations. And, again, the substantive inclusion of human rights appears in Part III.

Despite such efforts at consistency, however, the two covenants reveal sharp distinctions in both form and substance. Regarding substance, the ICESCR contains a mere ten articles that explicate those economic, social, and cultural rights that are to be protected—Articles 6 through 15. Does this seem surprising that the ICCPR dedicated 21 articles to substantive human rights issues while the ICESCR relies on a mere ten? Does such a sharp difference imply a prioritizing of civil and political rights over those that are economic, social, and cultural? Does this reinforce Eide’s argument about the rhetoric used by states to disentangle themselves from human rights obligations?

Recollect that economic, social and cultural rights are essentially those rights that ensure the physical and mental well- being and dignity of the person. They also reflect both individual and collective rights as exemplified by the rights to language and religion.1 In this, they are distinct from civil and political rights. Of equal pertinence is the actual separate recognition of economic rights from both social and cultural rights; that bears a bit of consideration at this juncture. However, it is critical to not lose sight of the intrinsic interconnectedness of the rights in the category.

Beginning with economic rights, it should not be surprising that an individual’s economic rights/empowerment such as the right to work is enshrined in Articles 6-9 at the outset of Part III. Foreshadowing more contemporary calls for a living wage (in contrast to a minimum wage), Article 7 stipulates that the states parties ensure “…[a] decent living for [workers] and their families…” wherein “…[f]air wages and equal remuneration for work of equal value without distinction of any kind…” (Article 7 (a)) is the foundational principle. Concurrently, the right to join trade unions (Article 8) illustrates the linkages between civil/ political rights and economic, social, and cultural rights. Without the basic right to assembly, the ability to create and join trade unions is moot; without the latter right, there is a significant limitation on the types of assembly that would be safeguarded.

Social rights form the substance of the succeeding articles (10-14) through the enumeration of the rights to health, education, marriage, and protections for the family as the “…natural and fundamental unit of society.” (Article 10) It is in Article 11 where we find the commingling of rights and needs that were differentiated in the Introduction. Want from hunger along with adequate clothing and housing are to be guaranteed as well as the continuous improvement of living conditions. However, unlike many, many other human rights, such needs are not solely the purview of individual states parties. Rather, the language is quite explicit that it is through international cooperation that necessary programs are to be developed and implemented.

In this context, and not surprisingly, education exemplifies the recognition that ‘it takes a village to raise a child,’ and that the life and future of the village depends upon that child. Moving beyond merely stipulating the right to education, the ICESCR identifies that right as being essential for “…enabl[ing] all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.” (Article 13 (1)) Thus, no less than world peace hinges on each and every person—child and adult — receiving an education.

Sadly, from this author’s perspective, cultural rights are embodied in but a single article. Part III of the Covenant closes

with Article 15’s recognition that everyone possesses the right to partake in the cultural life of the community. Curiously, after recognizing the right “[t]o take part in cultural life” the clause immediately following affirms the right for individuals “[t]o enjoy the benefits of scientific progress and its applications.” (Article 15 (1)) The drafters of the Covenant apparently, and rather abruptly, shift from a generic statement of cultural rights and return to a concern for economic or social well-being. That is, the second clause quoted above seems to reinforce the language/concerns of Article 11 regarding improved “…methods of production, conservation and distribution of food by making full use of technical and scientific knowledge.” (Article 11(2)) Even within the sole article that explicitly mentions cultural rights, economic and social rights look to take priority.

Further minimization of basic cultural rights follows in the next sub-paragraph: “[t]o benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” (Article 15 (1)) Thus, without clearly and cleanly stipulating an individual’s and community’s right to their cultural practices, beliefs, etc., the ICESCR seems to move into the arena of what has come to be known as intellectual property rights. It appears that economic and social rights outweigh the significance of cultural rights within the ICESCR in particular, and perhaps in this global human rights category in general.

Conclusion

The ICESCR was drafted and adopted by the UNGA under the same historical realities as the ICCPR. Further, the UDHR, ICCPR, and ICESCR—collectively the International Bill of Human Rights—create an invaluable foundation for all of the succeeding international human rights agreements, whether global or regional in scope. For example, Article 7 quoted above supplies a cornerstone for gender equity in the workplace, a central concern of the Convention on the Elimination of all Forms of Discrimination Against Women that was to be adopted some 13 years later (see Chapter 8). The same article’s language of “… without distinction of any kind …” simultaneously reflects an earlier agreement, the Convention on the Elimination of all Forms of Racial Discrimination (CERD — see Chapter 7) that was adopted in 1965, a year before the ICESCR. Clearly the idea of ending all manner of discrimination was and is a paramount theme/thread running through these and other international human rights agreements.

The shortcomings of the ICESCR should not detract from the historical significance of this particular human rights treaty. It is the people, decision-makers, and leaders of the 1940s, 1950s, 1960s, and 1970s who clearly contributed mightily to identifying and solving global human rights issues. The current “younger generation,” in expanding these efforts and moving the overall promotion and protection of human rights forward, would do well to recognize and incorporate their predecessors’ accomplishments.

As a case in point, the ICESCR proves indispensable for the current UN Sustainable Development Goals (SDGs) and their predecessor, the UN Millennium Development Goals (MDGs). The Covenant is, quite simply, the essential legally binding foundation for holding states parties accountable for guaranteeing not merely socioeconomic polities within which individuals and communities may survive, but actually thrive. It is only in the passing of the proverbial torch, simultaneously depending upon both giver and receiver, that global human rights may continue to be protected and promoted.

Expandable map of parties and signatories to the ICESCR (January 3, 1976)

International Covenant on Economic, Social and Cultural Rights

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966   Entry into force: 3 January 1976, in accordance with article 27

Preamble

The States Parties to the present Covenant,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Agree upon the following articles:

PART I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co- operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

Article 4

The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Article 5

1. Nothing in the present Covenant 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 or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.

2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART III

Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not

inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic

society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

Article 9

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

Article 10

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.

3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid

employment of child labour should be prohibited and punishable by law.

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

Article 13

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree

that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be

established, and the material conditions of teaching staff shall be continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Article 14

Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years,

to be fixed in the plan, of the principle of compulsory education free of charge for all.

Article 15

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

PART IV

Article 16

1. The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein.

2. (a) All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant;

(b) The Secretary-General of the United Nations shall also transmit to the specialized agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialized agencies in so far as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments.

Article 17

1. The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after

consultation with the States Parties and the specialized agencies concerned.

2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant.

3. Where relevant information has previously been furnished to the United Nations or to any specialized agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice.

Article 18

Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamental freedoms, the Economic and Social Council may make arrangements with the specialized agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities. These reports may include particulars of decisions and recommendations on such implementation adopted by their competent organs.

Article 19

The Economic and Social Council may transmit to the Commission on Human Rights for study and general recommendation or, as appropriate, for information the reports concerning human rights submitted by States in accordance with articles 16 and 17, and those concerning human rights submitted by the specialized agencies in accordance with article 18.

Article 20

The States Parties to the present Covenant and the specialized agencies concerned may submit comments to the Economic and Social Council on any general recommendation under article 19 or reference to such general recommendation in any report of the Commission on Human Rights or any documentation referred to therein.

Article 21

The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received from the States Parties to the present Covenant and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the present Covenant.

Article 22

The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.

Article 23

The States Parties to the present Covenant agree that international action for the achievement of the rights recognized in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunction with the Governments concerned.

Article 24

Article 25

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART V

Article 26

2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States which have signed the present Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 27

Article 28

The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

Article 29

1. Any State Party to the present Covenant may propose an amendment and file it with the Secretary- General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the

conference shall be submitted to the General Assembly of the United Nations for approval.

3. When amendments come into force they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.

Article 30

Irrespective of the notifications made under article 26, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph I of the same article of the following particulars:

(a) Signatures, ratifications and accessions under article 26;

(b) The date of the entry into force of the present Covenant under article 27 and the date of the entry into force of any amendments under article 29.

Article 31

1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 26.

Signatories

Tap here to view the voting record for the International Covenant on Economic, Social and Cultural Rights.

Discussion Questions

1. Now that you have read both the ICCPR and ICESCR, could the two sets of rights have been included in a single covenant? That is, do you still agree or disagree with the decision for separate conventions? What are some specific details of the covenants to support your comments?

2. Given that only ten articles address actual economic, social, and cultural rights, do you think that there is any omission of actual rights and/or are details of included rights missing? If so, what are they and why might they have been omitted? If not, comment on why you think that the Covenant is comprehensive.

3. Beyond the example of trade unions provided above, what are other specific examples from the ICESCR and the ICCPR that reinforce Eide’s argument? Are there counterexamples; that is, are there examples in the ICESCR that suggest that such rights need to take precedent over civil/political rights, or vice versa?

4. Having read the UDHR and the two 1966 Covenants, do you think it would have been better for the drafters of the UDHR to include enforcement measures in the UDHR? Or, is the present solution of including enforcement measures in each covenant the better way?

5. Are you surprised to learn of the limited explicit consideration of cultural rights in the ICESCR? What possible explanations are there for this apparent minimizing of such rights? Does historical context play a role here, or are there other, more plausible explanations?

6. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the ICESCR?

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Section II: Crimes Against Humanity

The denial or abridgment of certain human rights are deemed to be the most egregious types of human rights violations: genocide, war crimes, torture, enslavement, apartheid, etc. Collectively, they are referred to as crimes against humanity. According to the UN Office on Genocide Prevention and the Right to Protect, the concept dates back to the late 18th or early 19th centuries.

In international law, crimes against humanity emerged conceptually with the Hague Convention of 19071 and have been codified in international human rights law at various times since then.2 Most recently, the language of the Rome Statute creating the International Criminal Court attempts to clarify and enumerate what constitutes crimes against humanity. When perpetrated “... as part of a widespread or systematic attack directed against any civilian population, ...” (Rome Statute, Article 7) crimes against humanity also include (but are not limited to): murder, extermination, enslavement, deportation or forcible transfer of population, torture, sexual violence (including rape, sexual slavery, and forced pregnancy), and enforced disappearance.

As a reminder, the three themes and threads laid out in the introduction are historical context, tensions and intersections, and the dual challenges of implementation and enforcement. The emphasis in this section is on definitional dynamics of torture and genocide as specified in their respective conventions that, to varying degrees, reflect each thread/theme. The chapters of this

section, then, analyze two of the crimes against humanity: torture and genocide. In conjunction with the latter, there is a brief discussion of the related crimes of ethnocide and gendercide.

lxvi

Chapter 4

UN CONVENTION on the PREVENTION and PUNISHMENT of the CRIME of GENOCIDE Adopted: Dec. 9, 1948 Entry into Force: Jan. 12, 1951

Initial Considerations

Question: What do Cambodia (1975-1979), Kosovo (1998-1999), and Darfur (2003-present) have in common given the three different settings, three different continents, and three different time frames?

Answer: The massacres and other atrocities that took place in each location were never officially recognized as genocide, despite the UN General Assembly having adopted the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) on December 9, 1948.1 Juxtaposing this, two of the three officially recognized genocides, the Herero and Nama peoples of southwestern Africa (1904-1907), the Holocaust (1938-1945), and Rwanda (1994), occurred prior to the Convention’s existence.

In fact, the word genocide itself did not exist when the Herero, Nama, and Jews were being brutalized and killed. Why, then, are some situations deemed to be genocide and others not? Such conundrums surrounding genocide, illustrated by the situations identified above, furnish the context for some core considerations. What constitutes genocide? What role might motivation play in determining genocide? And, perhaps most perplexingly, why has our shared sentiment that emerged from World War II—“Never Again!”—not yet been realized?

Map of Namibia and the homelands of the Herero and Nama peoples, who experienced genocide from 1904-1907.

Gallery 4.1 History of Genocide

Raphael Lemkin, Polish and Jewish lawyer who coined the

term ‘genocide’

Raphael Lemkin, a Polish jurist and legal scholar, introduced the term genocide in his post-World War II analysis of the Holocaust. To quote from his original article on the subject:

Would mass murder be an adequate name for such a phenomenon? We think not, since it does not connote the motivation of the crime, especially when the motivation is based upon racial, national or religious considerations. An attempt to destroy a nation and obliterate its cultural personality was hitherto called denationalization. This term seems to be inadequate, since it does not connote biological destruction. . . . These considerations led the author of this article to the necessity of coining a new term for this particular concept: genocide. This word is made from the ancient Greek word genos (race, clan) and the Latin suffix cide (killing). Thus, genocide in its formation would correspond to such words as tyrannicide, homicide, patricide. (Lemkin, 227)    The relevancy of Lemkin’s thoughts is manifest in two ways. First, as is most often noted, he created the term genocide. The second relevancy stems from his specific language regarding motivation. To reiterate, the phrase mass murder “... does not connote the motivation of the crime, especially when the motivation is based upon racial, national or religious consideration.” (Ibid) While definitional dynamics and the significance of motivation are distinctive aspects of genocide,

69 Nazi concentration camp badges

they are inherently entwined and, hence, will be discussed in tandem.

Key Elements

Turning to the language of the Genocide Convention itself, Article II states, in part, that: “In the present Convention, genocide means any of the following acts committed with an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, ... .” The stipulation of four types of group identity— national, ethnical, racial, or religious—simultaneously establishes a foundation for the definitional and motivational aspects of genocide. It is noteworthy that Lemkin, perhaps inadvertently, provided key language for Article II. Three of the four group types included in the Convention (national, racial, and religious) were previously named by Lemkin; ethnical expanded the list to four. Thus, definitionally and critically, the group identity qualification

distinguishes genocide from mass murder — Lemkin’s principle concern. The armed conflicts in Colombia and Liberia, for example, or the attacks in the U.S. on Sept. 11, 2001, clearly resulted in mass murder; they are just as clearly not genocide given that the victims were not targeted because of their national,

ethnical, racial, or religious affiliations. To be precise: The motivation was not derived from the identity of the victims.

A second phrase from the above quoted Article II, “... with an intent to destroy, in whole or in part, ...” (Ibid) gives rise to motivational facets. The people being targeted do not actually have to be annihilated in toto for a determination of genocide to be made. Further, bringing Article I into our discourse, the timing/ setting of the activity also does not affirm or negate it from being genocide. That is, “[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” (emphasis added) War or armed conflict cannot excuse or justify acts of genocide. In sum, Article II’s stipulation of four types of groups, conjoined with Article I’s inclusive language regarding war and peace, creates a framework for preventing and punishing the crime of genocide. Yet, our consideration of motivation is incomplete. Are there other identifiable groups that the Genocide Convention omits that ought to have been included?

Turning to the Holocaust again, indeed, people were forced into the concentration camps for reasons other than being Jewish. Also among the persecuted were those protesting Hitler’s pogroms, gay men and lesbians, and people with physical or mental challenges; they became targets for those very reasons. Gay men and lesbians were forced to wear a pink or black

“War or armed conflict cannot excuse or justify acts of

genocide.”

triangle, respectively, analogous to the yellow star for Jewish individuals. Political prisoners wore red triangles while Jehovah’s Witnesses wore purple ones.

In the Buchenwald concentration camp, for example, separate barracks were created just for political dissidents. But the Genocide Convention remains silent regarding political affiliation, sexual orientation, gender identity, and physical characteristics/abilities. Individuals were repeatedly and clearly targeted by Hitler who carried any of these identifiers. Arguably, the distinction between involuntary associations (race, ethnicity, etc.) and voluntary associations (political allegiance/parties, etc.) may be critical to differentiating between genocide and mass murder. Such delineations, however, do not necessarily clarify the issue as they give rise to new sets of questions. For example, isexual orientation or gender identity a basis of voluntary or involuntary association? neither sexual orientation, gender identity, or physical characteristics/abilities are voluntary. So, why were they not included in the Convention? Moving forward, the international community needs to be cognizant of such omissions when making determinations of genocide.

Genocide Permutations

Two other related concepts need to be included in any discussion of genocide: ethnocide and gendercide. The first of these has been characterized as “genocide on the installment plan.” (Bay 1989) Ethnocide results in the elimination of a

person’s or group’s identity through the oppression of cultural practices, language, etc. In U.S., Canadian, and Australian history, the forced removal of indigenous peoples’ children to boarding schools exemplifies ethnocide.2 Boarding schools were the preferred mechanism for forced assimilation of indigenous peoples’ children. Government sanctioned methods of oppression included prohibiting use of the mother language, denial of spiritual and cultural practices, rape, and severe physical punishment for infractions.

Gendercide typically refers to the targeted persecution of both women and men as such. Regarding women, female infanticide is perhaps the most obvious example. Additionally,

Barracks at Flossenbürg concentration camp (1945)

some research suggests that civilian populations of men could be considered a targeted group for genocidal persecution, particularly in situations of armed conflict.3 Civilian males roughly between the ages of 12 and 50 are perceived to be potential enemy fighters and thus are first to be eliminated by an attacking force. As a result, the term gendercide has emerged as a new area of research related to genocide.

What seems to be missing from gendercide discussions are non-binary identities. That is, individuals who identify as gender queer, non-conforming, intersex, etc. to date have been excluded in the analysis. Transgender individuals and other gender identities are equal, perhaps more so, at risk precisely because of who they are. Clearly, at the time of the drafting and adoption of

the Convention against Genocide, such distinctions not only were not recognized or accepted, but were seen as abnormal and/or a disease. However, that does not explain the lack of such considerations in contemporary scholarship.

Conclusions

Where, then, does genocide ‘fit’ in the broader context of global human rights considerations? As per the previous section, human rights are typically categorized as civil and political or, alternatively, economic, social and cultural. Concurrently, as described in the introductory chapter, human rights may be individual or collective, universal or relative. Genocide can arguably be seen as targeting the individual; it nonetheless targets a group/community. Therefore, as such (and again arguably) that community/collective targeting places it in the context of collective rights. Most appropriately, however, genocide belongs to the class of human rights known as crimes against humanity as outlined in the section overview.

As these comments illustrate, the concept of genocide is immensely complicated. Its prevention and punishment, therefore, become highly contested despite the seemingly obvious egregious nature of the crime. So, why are some situations acknowledged as genocide and not others?5 In the end, Article I, among others, requires action on the part of states should a determination of genocide be made. Thus, appreciating the geopolitical context of specific instances may shed light on

Fences in Auschwitz (1945)

the willingness and/or reluctance of the international community to make that assessment.

Convention on the Prevention and Punishment of the Crime of Genocide

Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948  Entry into force: 12 January 1951, in accordance with article XIII

Preamble

The Contracting Parties,

Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world,

Recognizing that at all periods of history genocide has inflicted great losses on humanity, and

Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,

Hereby agree as hereinafter provided:

Article I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

Holocaust memorial pillars in Germany

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

Article IV

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article V

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

Article VI

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article VII

Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Article VIII

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention

and suppression of acts of genocide or any of the other acts enumerated in article III.

Article IX

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Article X

The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.

Article XI

The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly.

The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.

After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non- member State which has received an invitation as aforesaid.

Instruments of accession shall be deposited with the Secretary- General of the United Nations.

Article XII

Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Article XIII

On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a procès-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article XI.

The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.

Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.

Article XIV

The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.

It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.

Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.

Article XV

If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.

Article XVI

A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General.

The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.

Article XVII

The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following:

(a) Signatures, ratifications and accessions received in accordance with article XI;

(b) Notifications received in accordance with article XII;

(d) Denunciations received in accordance with article XIV;

(e) The abrogation of the Convention in accordance with article XV;

(f) Notifications received in accordance with article XVI.

Article XVIII

The original of the present Convention shall be deposited in the archives of the United Nations.

A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI.

Article XIX    The present Convention shall be registered by the Secretary- General of the United Nations on the date of its coming into force.

Signatories

Tap here to view the voting record for the Convention on the Prevention and Punishment of the Crime of Genocide.

Discussion Questions

1. Should the definition of genocide in Article II of the Convention be modified or expanded in any way? If so, what changes would you suggest and what are the possible consequences of such changes?

2. How might motivation or intention be identified when determining if a situation constitutes genocide? That is, what specific activities or characteristics could be used to determine, for example, if “[direct]and public incitement to commit genocide” (Article III (c)) has transpired?

3. Does the language of Article I—“... which they undertake to prevent and punish”—require the Contracting Parties (those states that have signed and ratified the Convention) to engage in specific responses when genocide has occurred? If so, is

that a possible reason why so few contemporary situations have not been officially recognized as genocide?

4. Regarding jurisdiction over trials for genocide, do you think persons charged with that crime under the Convention should be tried within the territory where the genocide occurred (see Article VI)? Or, should all genocide trials take place in a regional international court or the International Criminal Court?

5. Is your country a State party to the Convention? In what ways has it either helped to prevent or contributed to genocide?

6. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the Convention against Genocide?

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Chapter 5

UN CONVENTION against TORTURE and other CRUEL, INHUMAN and DEGRADING TREATMENT or PUNISHMENT Adopted: Dec. 10, 1984 Entry into Force: June 26, 1987

Initial Considerations

Torture, along with genocide (see Chapter 4), constitutes a crime against humanity. As with genocide, it also cuts across multiple categories of human rights (see Introduction), most notably civil/political, individual, and universal. Yet another shared characteristic with genocide is that the practice of torture was thoroughly entrenched in the activities of World War II. Both the Allied and Axis powers extensively engaged in torture. Why then did it take an additional 36 years (from 1948 to 1984) for the international community to outlaw torture by adopting the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (Convention against Torture)? This is especially so given the shared characteristics, prevalence of both genocide and torture during WWII, and the characterization of both as crimes against humanity. The following commentary lays the foundation for a discourse of this conundrum. But first, once again, definitions matter.

Definition: Breadth and Limitations

A first read of the Convention against Torture (CAT) Article 1(1) is useful to situate the discussion.

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person

information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (emphasis added)

Thus, three key elements are central to the international legal definition of torture: intentionality, purpose/motivation, and the nature of the perpetrator. Taken together, these three critical components reflect those found in the definition of genocide, but simultaneously incorporate a limitation with respect to the perpetrator not found in the Genocide Convention.

To expand, for torture, the language of “whether physical or mental” is somewhat analogous with the “in whole or in part” language of the genocide definition. That is, neither act is narrowly defined in terms of its effects on the victims. Further, intentionality remains a core requirement across the intervening 36 years. Concurrently, the list of motivations/purposes of torture exhibits inclusivity much as Articles II and III in the Genocide Convention do for that crime against humanity. In sum, the international community exercised conceptual consistency when

codifying international human rights law regarding genocide and torture.

However, regarding the perpetrator, recall that Article IV of the Genocide Convention states:

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. (emphasis added)

In sharp contrast, we find a clear limitation on the definitional aspects of torture regarding the offender. An act only constitutes torture if it occurs “…at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (Article 1(1); emphasis added) Therefore, under the Convention against Torture, individuals engaging in torturous activities (e.g., a serial kidnapper/killer; member of a rebel group or terrorist organization) could not be charged as such. Again, as with genocide, the Rome Statute of the International Criminal Court offers alternatives for such situations.

To conclude this section, a fourth core element—the circumstances of the torture—is found in the text of Article 2(2):

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The language herein is quite clear and explicit, and just as equally, contentious. There is no doubt that, having met the other definitional criteria, torture is torture regardless of any surrounding circumstances or conditions. If taken literally, then, this article precludes governments from using national security concerns, perceived threats of terrorist attack or, to reiterate, any “exceptional circumstances whatsoever” to justify or provide exculpatory validation. With the preceding definitional core elements in mind, we may now dig a bit deeper into the broader developmental dynamics of the Convention.

Situating CAT in the Convention in the Evolution of Human Rights Law & Practice

Picking up the theme/thread of historical context, the Convention against Torture embodies and exemplifies evolutionary changes in international human rights law and practice since the 1948 Genocide Convention and the UDHR, and the 1966 ICCPR. Significant developments include: more extensive detailing of domestic law compliance (Articles 2, 4, 5, 11); guarantees for the human rights of both victims and accused (Articles 6, 7, 13, 14); and human rights education vis-à-vis torture (Articles 10, 11). Finally, the Convention against Torture illustrates the institutionalization of oversight/reporting committee mechanisms for compliance with, and enforcement of, human rights conventions (Part II).

A second theme/thread is relevant here, that of compliance and enforcement. First, Article 2(1) requires a state party to “… take effective legislative, administrative, judicial or other measures…” not only in its home territory, but in any territory under its jurisdiction. For example, France vis-à-vis French Guiana and the United States vis-à-vis Puerto Rico must ensure that appropriate laws and enforcement mechanisms exist in each of their respective non-self-governing territories. Second, Article 4 supplements Article 2(2) in that the former mandates that torture be defined as a criminal activity in domestic law and that such offenses are “…punishable by appropriate penalties which take into account their grave nature.” Finally, Article 5 expands this

dictum by enumerating various situations or circumstances to which a state’s jurisdiction would extend. The drafters of the Convention against Torture, then, clearly desired to mandate that states align their domestic law with international human rights law.

In a like manner, and reflecting the third theme/thread of intersections and tensions, the Convention’s framers codified the tandem principles of ‘innocent until proven guilty’ and ‘justice for all’ in Articles 6(3) and 14. Building on the ICCPR the language of Article 6(3)assures due process rights for the accused as it instructs states to assist the accused with immediate communication “…with the nearest appropriate representative…” of that person’s state. An obligation also accrues to the arresting state to officially inform the accused’s state of the arrest and the circumstances thereof. Justice for the victim resides throughout the Convention in general terms but becomes more concretized in Article 14. Therein, compensation, redress of grievance, and rehabilitation are stipulated. Such articles underscore the duality of protecting the rights of the victims and those of the accused.

Turning to Article 10, it addresses, in a sense, the nexus of persons accused of torture and those victimized by it. Specifically, it insists that education/training about the prohibition against torture be provided to law enforcement personnel— whether civil or military—along with medical personnel and public officials, “…and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to

any form of arrest, detention or imprisonment.” Thus, persons accused of a crime, including those who may be accused of torture, are protected from torture. The accused are categorically not to be victimized themselves.

As a final point, Part II of the Convention, in its entirety, creates an elaborate monitoring and reporting system to facilitate implementation and enforcement: the Committee against Torture.1 Membership, rules of procedure, mandated reporting of states parties to the Convention, and required actions by the Committee are each detailed in various articles. Establishing such an oversight body was not done for the Genocide Convention. In fact, relatively speaking, little enforcement machinery was fashioned for that crime against humanity. It is equally as true that such instruments were not new with the Convention against Torture. Committees were created in conjunction with the ICCPR (see Chapter 2) and the ICESCR (see Chapter 3).

Two critical differences set the Convention against Torture and its committee apart from its antecedents, however. First, the Convention against Torture imbeds the Committee’s creation in the document itself. For both the ICCPR and ICESCR, the corresponding committees emerged from Optional Protocols that require separate signature and ratification by each state party. Second, and of paramount importance, Article 22 indicates that individuals—not just states parties—may provide information to the Committee concerning alleged instances of torture. At the

time, giving legal standing in the international arena to individuals who are not government officials signaled a significant transformation of traditions as well as customary international practice.

Other Inhuman and Degrading Treatment or Punishment

We need to reflect on one last substantive aspect of torture embodied in the remainder of the Convention’s title: “…other cruel, inhuman and degrading treatment or punishment.” It suggests that the drafters recognized the limited nature of the Convention’s definition of torture in that it does not constitute the full scope of heinous acts that humans are capable of perpetrating against each other. Arguably, internment camps used by the U.S. and Japan’s reliance on ‘marches’ to control civilian populations of its adversaries may not constitute torture but, nonetheless, demonstrate the proclivity for extreme maltreatment of individuals and groups. Article 16’s language explicitly applies the definitional aspects of torture from Article 1 to “…acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I… .” Despite this inclusion, cruel, inhuman or degrading treatment or punishment itself remains undefined in the Convention.

Conclusion

Each development previously discussed, in and of itself, represents significant progress in international human rights law,

both conceptually and in practice. Taken together, they constitute a remarkable maturation in protecting and promoting human rights. More fundamentally (and perhaps a bit optimistically), they demonstrate the ability of states to cooperate on principles that could potentially reach beyond the human rights realm to other global issues.

Returning to our opening conundrum, why then did it take an additional 36 years (1948 to 1984) after the Genocide Convention for the international community to outlaw torture? One tried (trite?) and true response is realpolitik or ‘political expediency’. Torture remained a convenient, if ill-conceived, tool of state- and warcraft. No doubt exists that torture was an ongoing practice in the post-WWII world. Armed conflicts in Korea and Vietnam, indeed throughout each region — Asia, Africa, Europe, Latin America, and the Middle East — during those intervening years undeniably illustrate states’ and non-state actors’ propensity to engage in torture. Just as assuredly,

expanded reliance on torture, and the ‘perfection’ of various techniques, during those years stimulated the very same international community to respond to the torturers’ victims in an explicit, codified manner.

Debatably, the Mỹ Lai massacre during the Vietnam War and U.S. Army platoon leader Lt. William Calley, Jr.’s defense of it, gave rise to the language of Article 2(3). “An order from a superior officer or a public authority may not be invoked as a justification of torture.” This incident, far from being isolated to the U.S. or the Vietnam War, exemplifies the argument here. That, by 1984, despite realpolitik, morality and ethics won out and enough of the states in the international community became galvanized to act and make a concerted effort to criminalize torture and other related barbarities. Ultimately, however, the Convention against Torture has not diminished the need for an exponentially greater commitment to implementation and enforcement of international human rights law.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984  Entry into force: 26 June 1987, in accordance with article 27 (1)

Preamble

The States Parties to this Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that those rights derive from the inherent dignity of the human person,

Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,

Have agreed as follows:

PART I

Article 1

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

  Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

  Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory

under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

Article 7

1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

Article 8

1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. 

Article 9

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.

2. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

Article 10

1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.     

Article 11

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.     

Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of

references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

PART II

Article 17

1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.

2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International

Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture.

3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary- General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At Ieast four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be

chosen by lot by the chairman of the meeting referred to in paragraph 3 of this article.

6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.

Article 18

1. The Committee shall elect its officers for a term of two years. They may be re-elected.

2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

(a) Six members shall constitute a quorum;

(b) Decisions of the Committee shall be made by a majority vote of the members present.

3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.

4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

5. The States Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 of this article.

Article 19

1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

2. The Secretary-General of the United Nations shall transmit the reports to all States Parties.

3. Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.

4. The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3 of this article, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph I of this article.

Article 20

1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its

members to make a confidential inquiry and to report to the Committee urgently.

3. If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.

4. After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Commission shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.

5. All the proceedings of the Committee referred to in paragraphs I to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.

Article 21

1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a

State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure;

(a) If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;

Committee, by notice given to the Committee and to the other State;

(c) The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention;

(d) The Committee shall hold closed meetings when examining communications under this article; (e) Subject to the provisions of subparagraph

(e), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission;

(f) In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

(g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;

(h) The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

(i) If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

2. In every matter, the report shall be communicated to the States Parties concerned.

3. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a

withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 22

1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

2. The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.

3. Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph I and is alleged to be

violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.

5. The Committee shall not consider any communications from an individual under this article unless it has ascertained that:

(a) The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;

(b) The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

6. The Committee shall hold closed meetings when examining communications under this article.

7. The Committee shall forward its views to the State Party concerned and to the individual.

8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party has made a new declaration.

Article 23

The members of the Committee and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph I (e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.       

Article 24

The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.

PART III

Article 25

1. This Convention is open for signature by all States.

2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 26

This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 27

1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

Article 28

1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.

2. Any State Party having made a reservation in accordance with paragraph I of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 29

1. Any State Party to this Convention may propose an amendment and file it with the Secretary- General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering an d voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the Secretary-General shall

convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.

2. An amendment adopted in accordance with paragraph I of this article shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.

3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.

Article 30

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by paragraph I of this article with respect to any State Party having made such a reservation.

3. Any State Party having made a reservation in accordance with paragraph 2 of this article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 31

1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of- the notification by the Secretary-General.

2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.

3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.

Article 32

The Secretary-General of the United Nations shall inform all States Members of the United Nations and all States which have signed this Convention or acceded to it of the following:

(a) Signatures, ratifications and accessions under articles 25 and 26;

(b) The date of entry into force of this Convention under article 27 and the date of the entry into force of any amendments under article 29;

Article 33

1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States.   

Signatories

Tap here to view the voting record for the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Discussion Questions

1. Do you agree or disagree with the analysis of why it took the international community 36 years to draft the Convention against Torture? What other reasons may there be for this?

2. What are some of the practical consequences of the definition of torture in the Convention? How might it be changed in light of more recent armed conflicts?

3. Regarding jurisdiction over trials for torture, do you think that persons charged with that crime under the Convention should be tried within the territory where the torture occurred? Or, should all such trials take place in a regional international court or the International Criminal Court?

4. What are the implications of having the treaty body–Committee against Torture–established in an optional protocol (ICCPR and ICESCR) rather than in the convention itself? Similarly, what is the implication of individuals being able to make reports to the Committee?

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&clang=_en

5. Is your country a state party to the Convention? In what ways has your country complied or ignored the Convention?

6. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the CAT?

Section III: Human Rights for Individuals, Groups & Peoples

Recall that the UNGA adopted the UDHR on December 10, 1948. Just over two years later on December 14, 1950, that same body passed Resolution 429 (V), which created a Conference of Plenipotentiaries in Geneva, Switzerland. To what end? Its purpose was to draft what was to become the Convention Relating to the Status of Refugees and Stateless Persons, which was adopted on July 28, 1951. Thus began the work of the UN to protect and promote the rights of specific or particular groups of individuals and, eventually, peoples. Several documents of this type emerged over the ensuing decades, from the 1960s through the early 2000s, but it is clear that the UN membership was cognizant of the need to have focused, legally binding international agreements early in its work.

Five such documents are studied in this final section of the text, ranging from the 1951 Refugee Convention to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted in 2007. The core purpose of these and similar documents is to reinforce and ensure that human rights in general — and the specific needs of particular individuals, groups, and peoples — are attended to in an explicitly equitable manner. The foundation remains to include both (1) civil and political and (2) economic, social, and cultural rights, albeit to varying degrees and depth (ironic given the arguments for separating the two sets of rights in the 1966 conventions).

Again, the three central themes/threads of our discourse remain steadfast throughout the documents. Historical context ranges from the relatively immediate history of WWI and WWII for the Refugee Convention to the centuries long (and ongoing) subjugation and oppression of indigenous peoples being the backdrop for the UNDRIP. The second thread of intersections is patently obvious with the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) with respect to the girl child. Nonetheless, tensions are similarly present between UNDRIP with its emphasized concern for collective rights and virtually all other documents that stress individual rights. Finally, implementation and compliance are no less apparent across these documents as, for example, the rights of women and children are simultaneously expanding and contracting across the world at the hands of those exercising power under the guise of sovereign authority.

Chapter 6

UN International Convention Relating to the Status of Refugees

Adopted: July 28, 1951 Entry into Force: April 22, 1954

Initial Considerations

At its inception the UN concerned itself with categories or types of rights that were to be guaranteed to all, and in that sense, they were both legally and conceptually universal1 (e.g., civil and political; economic, social, and cultural, genocide). But a few years later, and again attempting to address the brutalities and resultant exigencies of WWII, the member states turned to the topic of refugees and stateless persons and began work on the Convention Relating to the Status of Refugees. Whether or not a sense of guilt or the need to make amends motivated some negotiators may be a point of debate. However, the realities are that several states, among them Australia, Canada, France, South Africa, the United Kingdom, and the United States, denied entry to tens of thousands of people fleeing the atrocities of the Nazi regime. Like genocide, then, protecting human rights of refugees was deemed to be so important that it needed to be legally framed early in the UN’s work.

Most profoundly, human rights for refugees elicits a conundrum regarding those very rights. The causes that are the extreme realities pushing people to seek asylum and refugee status fundamentally mean one of two things: that the primary guarantor of their human rights — the government — is either unwilling or unable to fulfill that obligation; or, that same government is actively violating those rights. The conundrum is resolved by two intrinsically intertwined protections that must be

simultaneously engaged. A third party, specifically another state, is required to ensure that the most basic of universal rights are met: security of the person, food, water, and shelter. Concurrently, those very same conditions and the need to seek asylum invoke human rights particular to refugee status, detailed below. The remainder of this discussion rests on examining the ways in which the Convention and Protocol work to resolve this conundrum.

Definitional Dynamics

Recovering from the Second World War actually created a bit of tunnel vision for the drafting parties of the International Convention Relating to the Status of Refugees (Refugee Convention) and its Protocol. The definition of “refugee” was

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actually limited in scope by both geography and time: people fleeing within Europe and doing so prior to January 1, 1951. Despite this historical narrowness, the drafters were aware of a somewhat broader stretch of history. The Refugee Convention, in its preamble explicitly replaces prior international law on refugees. Several previous agreements had been promulgated pertaining to refugees from Russia and Armenia.2

It wasn’t until the 1967 Protocol was adopted that the geography and timeline restrictions were eliminated. In a rather cumbersome manner, Article 1(2) of the Protocol says that, “… the term ‘refugee’ shall, …, mean any person within the definition of article 1 of the Convention as if the words ‘As a result of events occurring before 1 January 1951 and …’ and the words … ‘a result of such events’, in article I A(2) were omitted.” (Protocol, Article 1(2)) So, ….. a refugee is someone who:

… owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality or is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such fear, is unwilling to return to it.” (Refugee Convention, Article I A(2))

As with the CAT and Genocide Conventions, the definition provides conditions or criteria to be met. Notably, the list of non- discriminatory criteria is more inclusive — adding social groups and political opinion — than that of the Genocide Convention. Also, somewhat analogous to the Convention against Genocide (the ‘peace or war’ clause), this definition applies whether the person is escaping their country or is already outside its borders but does not want to return. The 1950s through 1970s were replete with cases of individuals, particularly athletes and artists, “defecting” from then Soviet bloc or aligned states and the Soviet Union itself.

Key Elements

Non-discrimination. Non-penalization. Non-refoulement. It may seem curious that an international legal agreement is grounded in the negative. But, perhaps not so curious having examined the three agreements that comprise the International Bill of Human Rights and the two cornerstone documents for Crimes against Humanity. In fact, it is clear that explicit prohibitions on the abuse of power by governments in particular is at least as important as the entitlement aspects of protecting and promoting human rights.

Before examining these three cornerstone principles of the Convention, four related terms regarding the legal status of individuals need to be delineated: asylum seekers, refugees,

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internally displaced persons, and immigrants. Asylum is the legal status of temporary protection granted by a country other than one’s place of birth. A refugee is a person who has been granted that temporary protection and is recognized as a legal resident within the host country. An Internally Displaced Person (IDP) is someone who has been forced to relocate within their country of birth or permanent residence. An immigrant is someone who is seeking permanent residence within a country other than their place of birth and who is not forcibly fleeing their country of origin. One final note, as explored more fully in Chapter 10, is that group rights and collective rights are not synonymous. That is, the rights enumerated in the Refugee Convention attach to individuals because they are in the ‘group’ identified as refugees.

Non-discrimination

At the outset, it needs to be noted that the principle of non- discrimination was deemed to be so intrinsic to the Convention that no reservations are permitted for Articles 3 and 4 when a state ratifies the document. Non-discrimination takes on a dual meaning in the context of the Refugee Convention. In the first sense, states may not discriminate against individuals or groups seeking asylum due to their “… race, religion or country of origin.” (Refugee Convention, Article 3) Further, in the words of the Office of the High Commissioner for Refugees (UNHCR), “Developments in international human rights law also reinforce the principle that the Convention be applied without discrimination as to sex, age,

disability, sexuality, or other prohibited ground of discrimination.” (Office of the UNHCR, 2010, 3) Therefore, while the language of the Refugee Convention itself is not expansive regarding non-discrimination the UNHCR has stipulated that such expansion as delineated in other international human rights agreements applies to refugees as well.

The second denotation of non-discrimination pertains to a person or group having received refugee status in a host country. That very status of being a refugee cannot then become the basis of discrimination in and of itself. There are two phrases repeated throughout the Convention. First, as exemplified by Article 4, that states must “ accord to refugees within their territories treatment as least as favourable as that accorded to their nationals … .” (Article 4) In this case it is regarding religious practices and education of their children. Several other articles stipulate that, “Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, … ” with respect to both civil/political and economic/social/cultural rights. Articles 15 (association), 16 (due process), 17 and 18 (employment), and 21 and 22 (housing and education, respectively) exemplify such protections.

Non-penalization

Article 31(1) on non-penalization perhaps is the clearest illustration of the Convention’s drafters recognizing the

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conundrum outlined at the outset of this chapter. However contradictory it may seem, it is imperative that those seeking asylum be able to break the law to ensure that the law protects them. Refugees must have the ability to enter another country illegally without criminal consequences: non-penalization. That is, in order to obtain the basic universal right of security of the person, refugees must have the particular, and peculiar, right to break the law in the very narrow sense of illegal entry into a country.

Without the stipulations in Article 31(1), the vast majority of those seeking asylum would not be able to leave their country of origin. The language is quite precise:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. (Article 31(1))

Obviously, a person needs to be able to enter another country’s territory to request asylum and refugee status. Given the circumstances of their flight, it is highly unlikely that the niceties of visas, much less passports or other identity documents will be in their possession.

The second paragraph of Article 31 continues with prohibitions on limiting the movement of those seeking or receiving refugee status. In the words of the Office of the UN High Commissioner for Refugees, “… being arbitrarily detained purely on the basis of seeking asylum.” In short, entering a country for the purpose of requesting refugee status is not and should never been treated as criminal activity in and of itself.

Non-refoulement

Following Article 31 on non-penalization, the Convention turns to what is perhaps the most absolute, immutable principle and policy of the document: non-refoulement. It is deemed to be so vital that no state party may accede to the Convention with reservation for or derogation of Article 33. Starkly put, states MUST comply with this article if they sign and ratify the Convention, no exceptions!

So, what is refoulement? Article 33 prohibits states from returning a person — refoulement — “… in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” (Article 33(1)) Again, put simply, it is a violation of international human rights law to forcibly return a person to a life- threatening situation.

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Conclusion

As per our initial considerations, the Refugee Convention historically sits in-between the League of Nations’ and International Labor Organization’s legal efforts to protect human rights for refugees and those that came later in the process — the Protocol to amend core elements such as the definition of a refugee. But beyond the historical context, how does the Convention demonstrate the other two themes/threads of our analysis?

Coming as early as it did in the life of the UN, the Refugee Convention presents the first legally binding document that explicitly, and in its entirety, focuses on the rights of a single, particular group of individuals: refugees. In doing so it distinguishes itself as a document protecting conditional or relative rights of individuals who have qualified under a certain set of criteria. The second theme or thread — intersections and tensions — is evident when recalling that the Genocide Convention, adopted 3 years earlier (1948) also relies on the principle of relative or conditional rights. Like refugees, only people falling into one of four groups are protected in the Genocide Convention. The Refugee Convention and its Protocol further illustrate the intersections insofar as they enshrine and legalize some of the aspirational rights of the UDHR.

Regarding tensions with other human rights agreements, the provisions of the Refugee Convention pertaining to marriage recognition quite significantly come into conflict with both the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW, Chapter 8) and the Convention on the Rights of the Child (CRC, Chapter 9). The latter agreements prohibit underage marriage while the Refugee Convention ensures that a refugee’s personal status, “… more particularly rights attaching to marriage, shall be respected by the Contracting State, … provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee.” (Article 12(2))

For example, according to the UN Population Fund (UNPF), roughly 24% of the Syrian refugees located in Lebanon were married before the age of 18.3 (UNPF, 2017) If the cultural practices of the refugee’s country of origin permit underage marriage, does the host country have to honor that marriage or protect the rights of the child in question? Such cases are not limited to the Middle East and Northern African (MENA) states. Cases have surfaced in European countries, Australia, Canada, and the US as well. A further complication arises when a host country does not have uniform marriage age laws throughout its territory (see discussion in Chapter 9). This could give rise to an adult refugee claiming the right to marry a refugee (or other) child within the host country.

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State sovereignty and national security clearly have posed challenges for guaranteeing to refugees their rights. Global realities of terrorism, seemingly perpetual armed conflicts, the climate crisis and the like have resulted in states’ governments placing restrictions — often severe, subtle, and untenable — on those desperate for a safe haven. Unsubstantiated claims of threats to national security have been used to justify preventing individuals from even entering a country, much less actually being able to ask for and substantiate their case for asylum. Most egregiously, children including infants forcibly have been separated from their parents or guardians under the auspices of national security and in direct violation of several articles of the Refugee Convention.

Further challenges to implementation stemming from state sovereignty are found in the language of the Convention itself. For example, Article 9 permits a state to “… in time of war or other grave and exceptional circumstances, [take] provisional measures which it considers to be essential to the national security in the case of a particular person, … .” (Article 9) The ‘exceptional circumstances’ are open to the interpretation of the host state as well as what constitutes ‘provisional’. But, in no instances, should this article be used for wide-spread curtailment of asylum seekers’ rights as has been seen in Australia, the US, and other recipient countries.

As will be discussed in the remaining chapters of this section, there was and remains a pressing need explicitly and thoroughly to enumerate and actively protect human rights for designated individuals and groups of people. Frustratingly, the International Bill of Rights and those documents pertaining to Crimes against Humanity are not sufficient for the task.

UN International Convention Relating to the Status of Refugees

Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950

Entry into force: 22 April 1954, in accordance with article 43

Preamble

The High Contracting Parties,

Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,

Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to

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assure refugees the widest possible exercise of these fundamental rights and freedoms,

Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement,

Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation,

Expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States,

Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner,

Have agreed as follows: 

Chapter I

GENERAL PROVISIONS

Article 1 — Definition of the term "refugee"

A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:

1. Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;     Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;

2. As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or,

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owing to such fear, is unwilling to return to it.     In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

1. For the purposes of this Convention, the words "events occurring before 1 January 1951" in article 1, section A, shall be understood to mean either ( a ) "events occurring in Europe before 1 January 1951"; or ( b ) "events occurring in Europe or elsewhere before 1 January 1951"; and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.

2. Any Contracting State which has adopted alternative ( a ) may at any time extend its obligations by adopting alternative ( b ) by means of a notification addressed to the Secretary-General of the United Nations.

C. This Convention shall cease to apply to any person falling under the terms of section A if:

1. He has voluntarily re-availed himself of the protection of the country of his nationality; or

2. Having lost his nationality, he has voluntarily reacquired it; or

3. He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

4. He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

5. He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling

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reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

1. He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

2. He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

3. He has been guilty of acts contrary to the purposes and principles of the United Nations.

Article 2 — General obligations

Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.

Article 3 — Non-discrimination

The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.

Article 4 — Religion

The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children.

Article 5 — Rights granted apart from this Convention

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Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.

Article 6 — The term "in the same circumstances"

For the purposes of this Convention, the term "in the same circumstances" implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling.

Article 7 — Exemption from reciprocity

1. Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.

2. After a period of three years' residence, all refugees shall enjoy exemption from legislative reciprocity in the territory of the Contracting States.

3. Each Contracting State shall continue to accord to refugees the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State.

4. The Contracting States shall consider favourably the possibility of according to refugees, in the absence of reciprocity, rights and benefits beyond those to which they are entitled according to 4 paragraphs 2 and 3, and to extending exemption from reciprocity to refugees who do not fulfil the conditions provided for in paragraphs 2 and 3.

5. The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for which this Convention does not provide.

Article 8 — Exemption from exceptional measures

With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality. Contracting States which, under their legislation, are prevented from applying the general principle expressed in this article, shall, in appropriate cases, grant exemptions in favour of such refugees.

Article 9 — Provisional measures

Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a

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determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.

Article 10 — Continuity of residence

1. Where a refugee has been forcibly displaced during the Second World War and removed to the territory of a Contracting State, and is resident there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory.

2. Where a refugee has been forcibly displaced during the Second World War from the territory of a Contracting State and has, prior to the date of entry into force of this Convention, returned there for the purpose of taking up residence, the period of residence before and after such enforced displacement shall be regarded as one uninterrupted period for any purposes for which uninterrupted residence is required.

Article 11 — Refugee seamen

In the case of refugees regularly serving as crew members on board a ship flying the flag of a Contracting State, that State shall give sympathetic consideration to their establishment on its territory and the issue of travel documents to them or their temporary admission to its territory particularly with a view to facilitating their establishment in another country.

Chapter II

JURIDICAL STATUS

Article 12 — Personal status

1. The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.

2. Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee.

Article 13 — Movable and immovable property

The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.

Article 14 — Artistic rights and industrial property

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In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in literary, artistic and scientific works, a refugee shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting States, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence.

Article 15 — Right of association

As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.

Article 16 — Access to courts

1. A refugee shall have free access to the courts of law on the territory of all Contracting States.

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi.

3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his

habitual residence the treatment granted to a national of the country of his habitual residence.

Chapter III

GAINFUL EMPLOYMENT

Article 17 — Wage-earning employment

1. The Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.

2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting State concerned, or who fulfils one of the following conditions:

(a) He has completed three years' residence in the country;

(b) He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefit of this provision if he has abandoned his spouse;

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3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees with regard to wage- earning employment to those of nationals, and in particular of those refugees who 6 have entered their territory pursuant to programmes of labour recruitment or under immigration schemes.

Article 18 — Self-employment

The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.

Article 19 — Liberal professions

1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practising a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

2. The Contracting States shall use their best endeavours consistently with their laws and constitutions to secure the settlement of such refugees in the territories, other than the

metropolitan territory, for whose international relations they are responsible.

Chapter IV

WELFARE

Article 20 — Rationing

Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.

Article 21 — Housing

As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

Article 22 — Public education

1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

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2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.

Article 23 — Public relief

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.

Article 24 – Labour legislation and social security

1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters;

(a) In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women's work and the work of young persons, and the enjoyment of the benefits of collective bargaining;

(b) Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension.

2. The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State.

3. The Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of

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acquisition in regard to social security, subject only to the conditions which apply to nationals of the States signatory to the agreements in question.

4. The Contracting States will give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and non-contracting States.

Chapter V

ADMINISTRATIVE MEASURES

Article 25 — Administrative assistance

1. When the exercise of a right by a refugee would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting States in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities or by an international authority.

2. The authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under their supervision to refugees such documents or certifications as would normally be delivered to aliens by or through their national authorities.

3. Documents or certifications so delivered shall stand in the stead of the official instruments delivered to aliens by or

through their national authorities, and shall be given credence in the absence of proof to the contrary.

4. Subject to such exceptional treatment as may be granted to indigent persons, fees may be charged for the services mentioned herein, but such fees shall be moderate and commensurate with those charged to nationals for similar services.

5. The provisions of this article shall be without prejudice to articles 27 and 28.

Article 26 — Freedom of movement

Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances.

Article 27 — Identity papers

The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.

Article 28 — Travel documents

1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of

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the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.

2. Travel documents issued to refugees under previous international agreements by Parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article.

Article 29 — Fiscal charges

1. The Contracting States shall not impose upon refugees duties, charges or taxes, of any description whatsoever, other or higher than those which are or may be levied on their nationals in similar situations.

2. Nothing in the above paragraph shall prevent the application to refugees of the laws and regulations concerning charges in respect of the issue to aliens of administrative documents including identity papers.

Article 30 — Transfer of assets

1. A Contracting State shall, in conformity with its laws and regulations, permit refugees to transfer assets which they have

brought into its territory, to another country where they have been admitted for the purposes of resettlement.

2. A Contracting State shall give sympathetic consideration to the application of refugees for permission to transfer assets wherever they may be and which are necessary for their resettlement in another country to which they have been admitted.

Article 31 — Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.    

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Article 32 — Expulsion

1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Article 33 — Prohibition of expulsion or return ("refoulement")

1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

Article 34 — Naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.

Chapter VI

EXECUTORY AND TRANSITORY PROVISIONS

Article 35 — Co-operation of the national authorities with the United Nations

1. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.

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2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:

(a) The condition of refugees,

(b) The implementation of this Convention, and

Article 36 — Information on national legislation

The Contracting States shall communicate to the Secretary- General of the United Nations the laws and regulations which they may adopt to ensure the application of this Convention.

Article 37 — Relation to previous conventions

Without prejudice to article 28, paragraph 2, of this Convention, this Convention replaces, as between Parties to it, the Arrangements of 5 July 1922, 31 May 1924, 12 May 1926, 30 June 1928 and 30 July 1935, the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 and the Agreement of 15 October 1946.  

Chapter VII

FINAL CLAUSES

Article 38 — Settlement of disputes

Any dispute between Parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.

Article 39 — Signature, ratification and accession

1. This Convention shall be opened for signature at Geneva on 28 July 1951 and shall thereafter be deposited with the Secretary- General of the United Nations. It shall be open for signature at the European Office of the United Nations from 28 July to 31 August 1951 and shall be re-opened for signature at the Headquarters of the United Nations from 17 September 1951 to 31 December 1952.

2. This Convention shall be open for signature on behalf of all States Members of the United Nations, and also on behalf of any other State invited to attend the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons or to which an invitation to sign will have been addressed by the General Assembly. It shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.

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3. This Convention shall be open from 28 July 1951 for accession by the States referred to in paragraph 2 of this article. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 40. — Territorial application clause

1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned.

2. At any time thereafter any such extension shall be made by notification addressed to the Secretary General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.

3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.  

Article 41 — Federal clause

In the case of a Federal or non-unitary State, the following provisions shall apply:

(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of parties which are not Federal States;

(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;

(c) A Federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention showing the extent to which effect has been given to that provision by legislative or other action.  

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Article 42 — Reservations

1. At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16 (1), 33, 36-46 inclusive.

2. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary- General of the United Nations.

Article 43 — Entry into force

1. This Convention shall come into force on the ninetieth day following the day of deposit of the sixth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day following the date of deposit by such State of its instrument of ratification or accession.

Article 44 — Denunciation

1. Any Contracting State may denounce this Convention at any time by a notification addressed to the Secretary-General of the United Nations.

2. Such denunciation shall take effect for the Contracting State concerned one year from the date upon which it is received by the Secretary-General of the United Nations.

3. Any State which has made a declaration or notification under article 40 may, at any time thereafter, by a notification to the Secretary-General of the United Nations, declare that the Convention shall cease to extend to such territory one year after the date of receipt of the notification by the Secretary General.

Article 45 — Revision

1. Any Contracting State may request revision of this Convention at any time by a notification addressed to the Secretary- General of the United Nations.

2. The General Assembly of the United Nations shall recommend the steps, if any, to be taken in respect of such request.

Article 46 — Notifications by the Secretary-General of the United Nations

The Secretary-General of the United Nations shall inform all Members of the United Nations and nonmember States referred to in article 39:

(a) Of declarations and notifications in accordance with section B of article 1;

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(b) Of signatures, ratifications and accessions in accordance with article 39;

(d) Of reservations and withdrawals in accordance with article 42;

(e) Of the date on which this Convention will come into force in accordance with article 43;

(f) Of denunciations and notifications in accordance with article 44;

(g) Of requests for revision in accordance with article 45.

In faith whereof the undersigned, duly authorized, have signed this Convention on behalf of their respective Governments.

Done at Geneva, this twenty-eighth day of July, one thousand nine hundred and fifty-one, in a single copy, of which the English and French texts are equally authentic and which shall remain deposited in the archives of the United Nations, and certified true copies of which shall be delivered to all Members of the United Nations and to the non-member States referred to in article 39.     

Signatories

Tap here to view the voting record for the International Convention Relating to the Status of Refugees.

Discussion Questions

3. How are each of the three themes or threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the Convention and Protocol?

4. Do you think is the Convention has done a good job of balancing the protection of those seeking asylum with state sovereignty? Or, does the “balance” favor one over the other? Is that imbalance acceptable; why or why not?

5. How do each of the key elements — Non-discrimination, Non- penalization, and Non-refoulment — contribute to the overall protection of those seeking asylum?

6. How, if at all, might the Convention be strengthened to prevent recent violations of it by various states?

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https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf

Chapter 7

INTERNATIONAL CONVENTION on the ELIMINATION of all FORMS of RACIAL DISCRIMINATION Adopted: Dec. 21, 1965 Entry into Force: Jan. 4, 1969

Initial Considerations

As with each of the preceding international agreements, history reveals some critical under pinnings for the International Convention on the Elimination of all Forms of Racial Discrimination (CERD). Not only are international events of the 1950s and 1960s reflected, but so too are the domestic political and socioeconomic dynamics experienced by various geopolitical regions and individual countries. In the Americas, recall the dramatic social unrest and upheavals in Central and South America coupled with the precursors of Liberation Theology. 1 Simultaneously, the decades-long protracted civil rights struggle in the U.S. was burgeoning and intensifying. Europe was focused on economic development and integration (e.g., the evolving European Economic Community), but was experiencing pockets of white neo-nationalism (in France, for example). However, most essential for a thoughtful deliberation of CERD are the paradoxical decolonization of Africa and concurrent strengthening of apartheid in South Africa (see especially preambulatory paragraphs 4 and 9, and Article 3).

Thus, it is not too surprising that CERD followed within two years of the non-binding, aspirational UN Declaration on the Elimination of all Forms of Racial Discrimination. Further, in the Preamble (paragraph 11), the drafters explicitly reference the International Labor Organization (ILO) Convention concerning Discrimination in respect of Employment and Occupation

(November 1958) and the Convention against Discrimination in Education (1960) adopted by the UN Educational, Scientific and Cultural Organization (UNESCO). Both of these earlier conventions established the willingness of states to be legally bound by anti-discrimination standards and regulations. As the following summary and analysis shows, the drafting parties of CERD responded to contemporaneous and historical realities while simultaneously attempting to exercise foresight to address future global human rights issues.

Key Elements

Brevity characterizes CERD. In just seven articles, this global human rights agreement addresses the broad, fundamental topic of race-based discrimination. Articles 8 through 16 establish the structure and functions of the Committee on the Elimination of Racial Discrimination. Thus, like so many other human rights agreements, a treaty body was created for oversight and compliance purposes. The remaining articles contained in Part III stipulate procedural dynamics for ratification, coming into force, dispute settlement, and the like.

Inclusions & Exclusions

So, what substantively does CERD embrace, and what is omitted regarding racial discrimination? Retrospectively, the definition of racial discrimination does not contain any surprises. It prohibits any exclusionary or preferential action that inhibits a

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person or group from enjoying any and all human rights and fundamental freedoms. (Article 1(1)) Notably, CERD does not apply when a state party engages in preferential treatment in favor of its citizens and to the detriment of noncitizens. (Article 1(2)) Thereby, it recognizes states’ right to protect their own citizens but does not require similar protections for noncitizens.

Does such an exception give rise to potential or actual problems? For example, a plethora of cases exist in which citizenship is denied based on race/ethnicity of a person. In some instances, individuals have been and are denied citizenship despite having been born in the country and/or having family residing there for multiple generations. The most obvious example is South Africa under apartheid; the original inhabitants were denied full citizenship based on race. Other examples include Japan’s treatment of the Ainu people and Israel vis-à-vis Arabs or Palestinians. Therefore, is this race-based denial of citizenship nonetheless racial discrimination that ought to have been covered by the Convention?

Further clarification of what racial discrimination excludes comes in Article 1(4), enabling states to have policies that rebalance previous inequalities and injustices. That is, race may be considered for granting certain entitlements or benefits if the purposes are to create equality, fairness, or justice with respect to human rights. However, two limitations exist. First, such efforts cannot last after the goals have been met. Second, states cannot create “… separate rights for different racial groups… ” (Article 1(4)), for example different voting or due process rights in the context of civil and political rights. Article 2(2) reiterates such protections and their limitations in the specific context of economic, social and cultural rights. Discriminatory conditions pertaining to education, health care and employment come to mind, as well as denying outright access to such rights.

This 1939 photograph shows an African American man drinking from a “COLORED” water dispenser in Oklahoma City.

Gallery 7.1 Examples of Racial Discrimination Throughout History

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Mandated Actions & Limiting Other Human Rights

Having defined what discrimination is and is not, CERD, like CEDAW (Chapter 8) and CRC (Chapter 9), turns to mandating state action to bring domestic law, policies, and practices into alignment with the principles of non-discrimination. Not only does CERD require states to eliminate outright practices or policies of racial discrimination, it also condemns and prohibits “…all propaganda and all organizations…” that advocate racial superiority and/or hatred. States are obligated to make punishable by law any such propaganda and the activities of such organizations or individuals, including membership in those organizations. This stipulation embodies the concept that human rights are not necessarily absolute and raises questions regarding our second theme/thread of intersections and tensions between the various international human rights agreements.

Legitimate restrictions exist to ensure the protection and promotion of justice, equality, and security and dignity of the person. CERD, then, places limitations on freedom of speech, assembly, and similar civil/political rights when such rights explicitly curtail the rights for others; that is, when they embody racial discrimination. By extension, economic, social and cultural rights are similarly restricted when the exercise thereof is founded on racial discrimination. In this regard, and despite being written prior to the Internet’s existence, CERD challenges states to eliminate websites and other Internet-based sources that disseminate and advocate racial hatred and discrimination. It is noteworthy that the international community was tackling ‘hate

speech’ and ‘hate crimes’ long before those concepts emerged in domestic arenas. Indeed, the drafters of CERD, acutely aware of international and domestic realities, were foresighted in their approach to guaranteeing protection from racial discrimination.

Conclusion

To continue with the theme of intersections and tensions, CERD’s drafters did not single-mindedly emphasize prohibitions on states, individuals, or groups regarding racial discrimination. Using an integrative approach, the last articles of Part I unambiguously, proactively, and conjointly list specific civil/ political and economic/social/cultural rights that are protected regardless of race. The drafters seem to have avoided the ideological conflicts between ‘East’ and ‘West’ regarding civil/ political v. economic/social/cultural rights (see Part I). The imperative to curtail and eliminate racial discrimination, then, seems to have overridden other concerns and thereby reemphasized the inherent interdependence between these two primary categories of human rights.

Correspondingly, a clause in Article 5(b) stipulates that individuals are to enjoy “[t]he right to the security of the person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution… .” Written roughly 20 years prior to the Convention against Torture, the language herein provides a much more expansive protection for the security of the person. Precisely, both government and non-government persons are

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prevented from causing bodily harm to a person; the Convention against Torture limits this to government officials (see Chapter 5 for further discussion). Once again, CERD’s drafters appear to have had a more comprehensive approach to global human rights than their successors.

Regarding the third theme of compliance and enforcement, the drafters seemed to be similarly foresighted with the creation of an oversight and monitoring body — the Committee on the Elimination of All Forms of Racial Discrimination. While other conventions and covenants also include treaty bodies, CERD was drafted and adopted a full year before the dual 1966 covenants —

ICCPR (Chapter 2) and ICESCR (Chapter 3) — and 14 years prior to CEDAW (Chapter 8). Finally, it is interesting to note that CERD only required 27 states parties to come into force, and it achieved this in just over three years. In contrast, both the ICCPR and ICESCR required 35 states to come into force; it took a bit over 10 years for this prerequisite to be met. Taken in its entirety, the Convention on the Elimination of All Forms of Racial Discrimination either sidestepped or ignored many of the contentious debates surrounding the ICCPR, ICESCR, and other later agreements. It is at the least regrettable that the later drafters could not replicate the unity of CERDs negotiators.

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Expandable map of parties and signatories to the ICERD (January 4, 1969) Signing of the convention (March 7, 1966)

International Convention on the Elimination of All Forms of Racial Discrimination

Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965

Entry into force: 4 January 1969, in accordance with Article 19

Preamble

The States Parties to this Convention,

Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,

Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination,

Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end,

Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person,

Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,

Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing

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peace and security among peoples and the harmony of persons living side by side even within one and the same State,

Convinced that the existence of racial barriers is repugnant to the ideals of any human society, Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,

Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination,

Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960,

Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of Al l Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end,

Have agreed as follows:

PART I

Article 1

1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, 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.

2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance

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of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by

circumstances, racial discrimination by any persons, group or organization;

(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case en tail as a con sequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Article 3

States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.

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Article 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one's own, and to return to one's country;

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(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.

Article 6

States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

Article 7

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of

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Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

PART II

Article 8

1. There shall be established a Committee on the Elimination of Racial Discrimination (hereinafter referred to as the Committee) consisting of eighteen experts of high moral standing and acknowledged impartiality elected by States Parties from among their nationals, who shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as of the principal legal systems.

2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by the States Parties. Each State Party may nominate one person from among its own nationals.

3. The initial election shall be held six months after the date of the entry into force of this Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties

which have nominated them, and shall submit it to the States Parties.

4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

5. (a) The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee;

(b) For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee.

6. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. 

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Article 9

1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of this Convention:

(a) within one year after the entry into force of the Convention for the State concerned; and

(b) thereafter every two years and whenever the Committee so requests. The Committee may request further information from the States Parties.

2. The Committee shall report annually, through the Secretary General, to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of the reports and information received from the States Parties. Such suggestions and general recommendations shall be reported to the General Assembly together with comments, if any, from States Parties.

Article 10

1. The Committee shall adopt its own rules of procedure.

2. The Committee shall elect its officers for a term of two years.

3. The secretariat of the Committee shall be provided by the Secretary General of the United Nations.

4. The meetings of the Committee shall normally be held at United Nations Headquarters.

Article 11

1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

2. If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee by notifying the Committee and also the other State.

3. The Committee shall deal with a matter referred to it in accordance with paragraph 2 of this article after it has ascertained that all available domestic remedies have been invoked and exhausted in the case, in conformity with the generally recognized principles of international law. This shall

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not be the rule where the application of the remedies is unreasonably prolonged.

4. In any matter referred to it, the Committee may call upon the States Parties concerned to supply any other relevant information.

5. When any matter arising out of this article is being considered by the Committee, the States Parties concerned shall be entitled to send a representative to take part in the proceedings of the Committee, without voting rights, while the matter is under consideration.

Article 12

1. (a) After the Committee has obtained and collated all the information it deems necessary, the Chairman shall appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission) comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for this Convention;

(b) If the States parties to the dispute fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission not agreed

upon by the States parties to the dispute shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its own members.

2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States parties to the dispute or of a State not Party to this Convention.

3. The Commission shall elect its own Chairman and adopt its own rules of procedure.

4. The meetings of the Commission shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Commission.

5. The secretariat provided in accordance with article 10, paragraph 3, of this Convention shall also service the Commission whenever a dispute among States Parties brings the Commission into being.

6. The States parties to the dispute shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-General of the United Nations.

7. The Secretary-General shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States parties to the dispute in accordance with paragraph 6 of this article.

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8. The information obtained and collated by the Committee shall be made available to the Commission, and the Commission may call upon the States concerned to supply any other relevant information.

Article 13

1. When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute.

2. The Chairman of the Committee shall communicate the report of the Commission to each of the States parties to the dispute. These States shall, within three months, inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission.

3. After the period provided for in paragraph 2 of this article, the Chairman of the Committee shall communicate the report of the Commission and the declarations of the States Parties concerned to the other States Parties to this Convention.

Article 14

1. A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider

communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

2. Any State Party which makes a declaration as provided for in paragraph I of this article may establish or indicate a body within its national legal order which shall be competent to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention and who have exhausted other available local remedies.

3. A declaration made in accordance with paragraph 1 of this article and the name of any body established or indicated in accordance with paragraph 2 of this article shall be deposited by the State Party concerned with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary- General, but such a withdrawal shall not affect communications pending before the Committee.

4. A register of petitions shall be kept by the body established or indicated in accordance with paragraph 2 of this article, and certified copies of the register shall be filed annually through appropriate channels with the Secretary-General on the

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understanding that the contents shall not be publicly disclosed.

5. In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months.

6. (a) The Committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent. The Committee shall not receive anonymous communications;

(b) Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

7. (a) The Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule

where the application of the remedies is unreasonably prolonged;

(b) The Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner.

8. The Committee shall include in its annual report a summary of such communications and, where appropriate, a summary of the explanations and statements of the States Parties concerned and of its own suggestions and recommendations.

9. The Committee shall be competent to exercise the functions provided for in this article only when at least ten States Parties to this Convention are bound by declarations in accordance with paragraph I of this article.

Article 15

1. Pending the achievement of the objectives of the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in General Assembly resolution 1514 (XV) of 14 December 1960, the provisions of this Convention shall in no way limit the right of petition granted to these peoples by other international instruments or by the United Nations and its specialized agencies.

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(a) The Committee established under article 8, paragraph 1, of this Convention shall receive copies of the petitions from, and submit expressions of opinion and recommendations on these petitions to, the bodies of the United Nations which deal with matters directly related to the principles and objectives of this Convention in their consideration of petitions from the inhabitants of Trust and Non-Self- Governing Territories and all other territories to which General Assembly resolution 1514 (XV) applies, relating to matters covered by this Convention which are before these bodies;

(b) The Committee shall receive from the competent bodies of the United Nations copies of the reports concerning the legislative, judicial, administrative or other measures directly related to the principles and objectives of this Convention applied by the administering Powers within the Territories mentioned in subparagraph (a) of this paragraph, and shall express opinions and make recommendations to these bodies.

3. The Committee shall include in its report to the General Assembly a summary of the petitions and reports it has received from United Nations bodies, and the expressions of opinion and recommendations of the Committee relating to the said petitions and reports.

4. The Committee shall request from the Secretary-General of the United Nations all information relevant to the objectives of this Convention and available to him regarding the Territories mentioned in paragraph 2 (a) of this article.

Article 16

The provisions of this Convention concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes or complaints in the field of discrimination laid down in the constituent instruments of, or conventions adopted by, the United Nations and its specialized agencies, and shall not prevent the States Parties from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

PART III

Article 17

1. This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention.

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2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 18

1. This Convention shall be open to accession by any State referred to in article 17, paragraph 1, of the Convention.

2. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 19

1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twenty-seventh instrument of ratification or instrument of accession.

2. For each State ratifying this Convention or acceding to it after the deposit of the twenty-seventh instrument of ratification or instrument of accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 20

1. The Secretary-General of the United Nations shall receive and circulate to all States which are or may become Parties to this Convention reservations made by States at the time of

ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date of the said communication, notify the Secretary-General that it does not accept it.

2. A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it.

3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General. Such notification shall take effect on the date on which it is received.

Article 21

A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary General.

Article 22

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the

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dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

Article 23

1. A request for the revision of this Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations.

2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.

Article 24

The Secretary-General of the United Nations shall inform all States referred to in article 17, paragraph 1, of this Convention of the following particulars:

(a) Signatures, ratifications and accessions under articles 17 and 18;

(b) The date of entry into force of this Convention under article 19;

(d) Denunciations under article 21.   

Article 25

1. This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States belonging to any of the categories mentioned in article 17, paragraph 1, of the Convention.

Signatories

Tap here to view the voting record for the International Convention on the Elimination of All Forms of Racial Discrimination.

Discussion Questions

1. What do you think were the most critical historical/ contemporaneous events or conditions for CERD’s drafting?

2. Is CERD too short? Are seven articles sufficient for addressing racial discrimination?

3. What changes would you make to CERD, if any? What has been omitted? Does any element need to be reinforced, strengthened, or eliminated, etc.?

4. Do you think that the drafters of CERD were foresighted, or were they merely responding to the obvious? Would CERD be essentially the same if written today? 140

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&clang=_en

5. Is your country a state party to CERD? In what ways do you think your country adheres to, ignores, or explicitly violates CERD?

6. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the CERD?

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Chapter 8

UN CONVENTION on the ELIMINATION of ALL FORMS of DISCRIMINATION against WOMEN Adopted: Dec. 18, 1979 Entry into Force: Sept. 3, 1981

Initial Considerations

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW1) signifies the UN’s broadening attention to human rights agreements dedicated to protecting and promoting rights for a specific group of people — in this case, women. Equally as important, the drafters made a critical admission. Specifically, that discrimination against women remained (and remains) rampant throughout the world despite previous international efforts to ensure human rights in general or universal terms: “Concerned, however, that despite these various instruments, extensive discrimination against women continues to exist, … .” (CEDAW, preamble, para. 7)

UN members also made it abundantly clear that safeguarding equal rights for women did not constitute merely a ‘nice thing to do’. Quite the contrary, it was deemed an absolute necessity: “Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields, … .” (CEDAW, preamble, para. 13) Thus, none of the manifest domestic, international, and global problems and issues can be addressed or solved without the collaborative, cooperative and, above all, equal involvement of women and men.      

Core Elements

Notwithstanding the best intentions of the drafters of CEDAW, the language of the preamble itself reflects an understanding of women in a utilitarian sense. That is, the language indicates that women are valued for what they can contribute to society, not just for being who they are per se. Paragraph 8 of the preamble exemplifies this: “Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity…and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity, … .” (CEDAW, preamble, para. 8; emphasis added) This critique, admittedly, is founded on an individualistic rather than community human rights orientation.

Similar to previous international human rights agreements, CEDAW opens with a key definition, in this case “discrimination against women.” (Article 1) The Convention does not, however, enumerate human rights that women ought to have at its outset. Rather, Article 2 stipulates specific actions that states are to undertake, or from which they are to refrain, to guarantee their compliance with the Convention. The remainder of Part I addresses the use of special measures, and briefly touches on maternity and trafficking.   

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Integrating Civil & Political and Economic, Social & Cultural Rights

In Part II of the Convention, the emphasis shifts to civil and political rights for women. Among the basic rights of voting and other forms of political participation in the domestic arena, Article 8 extends such activity for women to the international arena, including participation in international organizations and the right to represent their countries. Finally, nationality attaches to the woman herself and cannot be altered due to marital status or any change in the status of her husband’s nationality (Article 9). Thus, a woman’s identity is hers and hers alone.

Decidedly, the ICCPR provides a more detailed, precise consideration of civil and political rights than does CEDAW. One interpretation is that CEDAW’s drafters may have determined that emphasizing particular civil and political rights from which women were/are most egregiously excluded would be more effective rather than merely reiterating the rights contained in the ICCPR as they apply to women. That is, if women’s right to vote, participate in policy decision-making, and hold office are explicitly guaranteed, then other civil and political rights would be protected by virtue of women being in positions of authority to do so. Arguably, then, CEDAW relies on the earlier ICCPR for specificity thus reflecting our second interactions and tensions theme/thread.

In contrast to Part II on civil and political rights, Parts III and IV of CEDAW offer considerable detail regarding economic, social and cultural rights for women. The level of detail is actually quite impressive. For example, Article 10 stipulates that the “… achievement of diplomas in educational establishments of all categories…” is to be ensured. Such guarantees reach beyond ‘simple’ access to education to the actual awarding of degrees, certificates and the like.3

More broadly, throughout Parts III and IV, the drafters repeatedly link specific economic, social and cultural rights to each other. For example, Article 11 links marriage and maternity to the right to work. Geography too —rural or urban living conditions—is frequently seen as a complicating factor to be accounted for when protecting and promoting human rights for women. Finally, CEDAW clearly identifies the inherent relationship between economic, social and cultural rights and civil and political rights. That is, Part IV is dedicated to women’s legal capacity to, among other things, enter into contracts, own and

Interactive 8.1: U.S. Women’s Rights

Timeline

Tap on the thumbnail above to explore an interactive timeline documenting U.S. women’s

rights.

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manage property, enter into and dissolve marriages, and determine their reproductive activity.

In sum, CEDAW manages to successfully operationalize the nexus of civil and political rights and economic, social and cultural rights for women. By recognizing and embracing the inherent interdependence of these two categories of rights, CEDAW creates a firm foundation upon which the future of human rights for women may rest. Despite this, one conspicuous shortcoming is the omission of the girl child in the document (with the exception of the age of marriage), which is discussed next.

The Critical Difference: Pregnancy

To their credit, the drafters of CEDAW explicitly and repeatedly recognized the unique biological ability of women to get pregnant and bear children. In conjunction, and just as importantly, they explicitly separated childbearing from childrearing. Educational information about the health and well- being of families and family planning is the subject of Article 10(h). Recall that Article 11 protects women from discrimination in the workplace due to pregnancy. Hence, while these articles draw connections between women’s pregnancy, childbearing and various human rights, Article 16 is the most critical.

Article 16(1) brings together women’s access to education and healthcare facilities, along with the legal right to make decisions about their bodily autonomy: “[t]he same rights to

decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; … .” (Article 16(1e)) It is quite clear that CEDAW stipulates and protects a woman’s right to make informed, educated decisions about her reproductive health; again, those decisions are hers and hers alone. By logical extension, education about and access to contraception, prenatal care, postnatal care, and the termination of a pregnancy are guaranteed rights under international law.

One last point ought to be mentioned in the context of rights being linked. Article 15(4) ensures that “… men and women [have] the same rights with regard to the law relating to the movement of persons… .” (Article 15(4)) Taken together with healthcare (or any other) rights, this guarantee protects women’s rights to travel to locations to safeguard and exercise their rights.

This area of human rights — as with so many others— sees many countries making efforts to comply, others continuing to deny such rights, and yet others reversing their protections of human rights for women. For example, in February 2022, Colombia legalized abortion on demand up to the 24th week of pregnancy via a ruling of the Constitutional Court. Four months later, in June 2022, the U.S. Supreme Court rescinded the previously recognized constitutional right to abortion on demand with no protections for the life or health of the woman, fetal health, or rape including that of young girls.

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The Absence of the Girl Child

While perusing CEDAW, it is important to note the absence of virtually any explicit inclusion of human rights for the girl child. In fact, there are exactly two references to girls in the document. In Article 10 addressing education, subparagraph (f), we find: “The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely… .” More generally, Part IV, Article 16(2) states: “The betrothal and the marriage of a child shall have no legal effect… .” Thus, in practical terms, CEDAW is a document to protect the rights of adult women.

The very existence of the document reflects grave concerns about equality of and discrimination against adult women. It is hard to accept that there was ignorance of discrimination against

girls in favor of boys. Denial assuredly, but ignorance …? Why, then, does CEDAW remain essentially silent on this matter?

Nine years would pass after the adoption of CEDAW before the UN would turn to the rights of all children in drafting (1989) and adopting (1990) the Convention on the Rights of the Child (see Chapter 9), and thereby the rights of the girl child. More recently, increasing

attention has been paid to girls in the contexts of education, healthcare, sex trafficking, and sexual assault. Certainly, the 2012 Taliban shooting of Malala Yousafzai while on her way to school in Pakistan and her subsequent advocacy for girls’ rights galvanized the global community around the issue of education.

Conclusion

Asbjørn Eide, in his article “Economic, Social and Cultural Rights as Human Rights” (2006), makes two critical arguments. First, a false hierarchy must not be created that places civil and political rights above economic, social, and cultural rights. In fact, they are inextricably linked. Second, as a corollary, particular danger exists in accepting the false premise that economic, social and cultural rights require greater financial and other resources to implement when compared to civil and political rights. Taken together, the two points carry even greater significance in the realm of human rights for women. Eide’s argument precludes that “giving” women the right to vote is a necessary precursor for achieving other civil/political rights and, later, economic, social and cultural rights. CEDAW, by explicitly connecting the two categories of rights, embodies Eide’s argument which was written some 27 years later.

Moving beyond the conceptual relevance of CEDAW, it simultaneously provides a legal foundation for NGOs and IGOs alike to expand their advocacy regarding human rights for women. Movements and organizations such as Half the Sky, Women for Women International, and Nobel Women’s

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Malala Yousafzai, Pakistani activist for female education and

the youngest Nobel Prize laureate

http://www.halftheskymovement.org/

https://www.womenforwomen.org/

https://nobelwomensinitiative.org/

Initiative (among thousands of others) can rely on CEDAW as an underpinning for any and all of their endeavors in this field. Concurrently, individual women such as Vandana Shiva (India), Shirin Ebadi (Iran), Jodi Williams (US), and Rigoberta Menchú Tum (Guatemala) reflect the diverse issues around which women are engaging in critical problem-solving activities. Dr. Shiva has dedicated her life to preserving, protecting, and expanding local knowledge and economies (in particular agricultural and food access practices). As a lawyer, Ms. Ebadi diligently focuses on legal protections for women, while Ms. Williams continues to lead efforts to eliminate land mines and other issues related to armed conflict. Finally, Rigoberta Menchú Tum tirelessly advocates for indigenous peoples’ rights. Such women explicitly demonstrate CEDAW’s drafters’ sagacity in asserting that “…the full and

complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields… .” (CEDAW, preamble, para. 13) Ultimately, though, it remains the unrecognized and unheralded women who pursue and achieve such goals that are, arguably, the critically important recipients of the protections afforded by CEDAW.    Finally, at least one additional omission (or at least uncertainty) of CEDAW offers direction for subsequent global human rights development. The language of CEDAW is limited to a binary understanding of gender: female or male. Does the language of the Convention apply to individuals or groups who identify as transgender or any other gender identity outside the traditional binary? This is particularly relevant for male-to-female

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transgender people, but there also are implications for female-to- male transgender people. Those individuals who do not identify as either female or male (gender queer, intersex, etc.) also are hard-pressed to find protections for themselves in CEDAW. Admittedly, such gender discussions and awareness were not as prevalent in the public domain (domestic or international) in the 1970s as they are today. Nonetheless, this remains an area into which human rights need to expand.

Convention on the Elimination of All Forms of Discrimination against Women

Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979

Entry into force: 3 September 1981, in accordance with article 27(1)

Preamble

The States Parties to the present Convention,

Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women,

Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights

and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex,

Noting that the States Parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights,

Considering the international conventions concluded under the auspices of the United Nations and the specialized agencies promoting equality of rights of men and women,

Noting also the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women,

Concerned, however, that despite these various instruments extensive discrimination against women continues to exist,

Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity,

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Concerned that in situations of poverty women have the least access to food, health, education, training and opportunities for employment and other needs,

Convinced that the establishment of the new international economic order based on equity and justice will contribute significantly towards the promotion of equality between men and women,

Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women,

Affirming that the strengthening of international peace and security, the relaxation of international tension, mutual co- operation among all States irrespective of their social and economic systems, general and complete disarmament, in particular nuclear disarmament under strict and effective international control, the affirmation of the principles of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women,

Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields,

Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole,

Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women,

Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination against Women and, for that purpose, to adopt the measures required for the elimination of such discrimination in all its forms and manifestations,

Have agreed on the following:     

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PART I

Article 1

For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.

Article 3

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

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Article 4

1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

Article 5

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children,

it being understood that the interest of the children is the primordial consideration in all cases.

Article 6

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

PART II

Article 7

States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country. 

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Article 8

States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.

Article 9

1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.

2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

PART III

Article 10

States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:

(a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre- school, general, technical, professional and higher technical education, as well as in all types of vocational training;

(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality;

(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;

(d ) The same opportunities to benefit from scholarships and other study grants;

(e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particulary those aimed at reducing, at the earliest possible time, any gap in education existing between men and women;

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(f) The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely;

(g) The same Opportunities to participate actively in sports and physical education;

(h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.

Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational

training and retraining, including apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

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(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.

Article 12

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.   

Article 13

States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to family benefits;

(b) The right to bank loans, mortgages and other forms of financial credit;

Article 14

1. States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas.

2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate

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in and benefit from rural development and, in particular, shall ensure to such women the right:

(a) To participate in the elaboration and implementation of development planning at all levels;

(b) To have access to adequate health care facilities, including information, counselling and services in family planning;

(d) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their technical proficiency;

(e) To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities through employment or self employment;

(f) To participate in all community activities;

(g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes;

(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.

PART IV

Article 15

1. States Parties shall accord to women equality with men before the law.

2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.

4. States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

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(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

PART V

Article 17

1. For the purpose of considering the progress made in the implementation of the present Convention, there shall be established a Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee) consisting, at the time of entry into force of the Convention, of eighteen and, after ratification of or accession to the Convention by the thirty-fifth State Party, of twenty-three experts of high moral standing and competence in the field covered by the Convention. The experts shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems.

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2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.

3. The initial election shall be held six months after the date of the entry into force of the present Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

5. The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine

members shall be chosen by lot by the Chairman of the Committee.

6. The election of the five additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of this article, following the thirty-fifth ratification or accession. The terms of two of the additional members elected on this occasion shall expire at the end of two years, the names of these two members having been chosen by lot by the Chairman of the Committee.

7. For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee.

8. The members of the Committee shall, with the approval of the General Assembly, receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide, having regard to the importance of the Committee's responsibilities.

9. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.     

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Article 18

1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect:

(a) Within one year after the entry into force for the State concerned;

(b) Thereafter at least every four years and further whenever the Committee so requests.

2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention.

Article 19

1. The Committee shall adopt its own rules of procedure.

2. The Committee shall elect its officers for a term of two years.

Article 20

1. The Committee shall normally meet for a period of not more than two weeks annually in order to consider the reports

submitted in accordance with article 18 of the present Convention.

2. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee.

Article 21

1. The Committee shall, through the Economic and Social Council, report annually to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties. Such suggestions and general recommendations shall be included in the report of the Committee together with comments, if any, from States Parties.

2. The Secretary-General of the United Nations shall transmit the reports of the Committee to the Commission on the Status of Women for its information.

Article 22

The specialized agencies shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their activities. The Committee may invite the specialized agencies to submit reports

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on the implementation of the Convention in areas falling within the scope of their activities.

PART VI

Article 23

Nothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained:

(a) In the legislation of a State Party; or

(b) In any other international convention, treaty or agreement in force for that State.

Article 24

States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention.

Article 25

1. The present Convention shall be open for signature by all States.

2. The Secretary-General of the United Nations is designated as the depositary of the present Convention.

3. The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

4. The present Convention shall be open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 26

1. A request for the revision of the present Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations.

2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.

Article 27

1. The present Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying the present Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth

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day after the date of the deposit of its own instrument of ratification or accession.

Article 28

1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary- General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.

Article 29

1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State Party may at the time of signature or ratification of the present Convention or accession thereto declare that it does not consider itself bound by paragraph I of this article. The other States Parties shall not be bound by that paragraph with respect to any State Party which has made such a reservation.

3. Any State Party which has made a reservation in accordance with paragraph 2 of this article may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 30

The present Convention, the Arabic, Chinese, English, French, Russian and Spanish texts of which are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS WHEREOF the undersigned, duly authorized, have signed the present Convention.

Signatories

Tap here to view the voting record for the International Convention on the Convention on the Elimination of All Forms of Discrimination against Women.   

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https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en

Discussion Questions

1. Does ensuring human rights for women also benefit men and/ or people of other genders? What are some examples? Should this be used as an argument for promoting human rights for women? Or, is it a reflection of women’s rights being granted BECAUSE it benefits men, and not because women ought to have the rights regardless of any value derived for men or other genders?

2. Why do you think the drafters did not enumerate specific human rights for women at the outset of CEDAW?

3. Considering Article 2, what are some specific examples of your country complying with or violating the enumerated activities?

4. Why might the drafters of CEDAW have selected the civil/ political rights found in Article 8 and 9 rather than other such rights?

5. Does the set of rights enumerated in Part I adhere together in a cohesive manner or do they seem disconnected? Explain.

6. Why does CEDAW contain more details about E/S/C rights than C/P rights (see Parts II, III, and IV, respectively)?

7. Regarding compliance, is it valuable to mandate that State parties to a convention file annual reports, even if there is doubt as to the reports’ accuracy?

8. Why do you think the CEDAW drafters found it necessary to include apparent minutia such as the awarding of diplomas?

9. Is your country a state party to the Convention? In what ways has it adhered to, ignored, or explicitly violated it?

10. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the CEDAW?

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Chapter 9

UN CONVENTION on the RIGHTS of the CHILD

Adopted: Nov. 20, 1989 Entry into Force: Sept. 2, 1990

Initial Considerations

The contemporary, widely held perception that children are the most vulnerable of the human population and in need of special care is just that—relatively contemporary. Not so long ago, children were seen as “little adults.” Certainly, regarding labor in preindustrial societies throughout the world and for the duration of the industrial revolution, children were expected to work. While clearly tied to socioeconomic class, it was nonetheless a prevailing belief that permeated a vast array of cultures and societies. Another aspect of children as “little adults” was not a class dynamic: marriage. Regardless of social class standing, girls were, and are, commonly married in their child and teenage years; not so with boys. There are innumerable documented cases of infants being betrothed shortly after birth, and even some in which the child is promised for marriage prior to birth.2

While child labor historically existed side-by-side with other situations of children being “little adults,” it is with child labor that a discourse on children’s human rights most appropriately begins. In the modern state system, the International Labor Organization (ILO) was the first international body to codify human rights with respect to children. Created in 19193 via the Treaty of Versailles that ended World War I, the ILO promulgated two documents regarding child labor in its inaugural year: the Minimum Age (Industry) Convention (No. 5) and the Night Work of Young

Persons (Industry) Convention (No. 6). Since that time, the ILO has created at least 25 separate Conventions and Recommendations documents that expand upon its initial efforts. In 1999, it notably added C132—the Worst Forms of Child Labor Convention.

Thus, similar to all other international human right instruments, the United Nations Convention on the Rights of the Child (CRC) was not created in a vacuum but reflects historical realities of the time . In addition to the early work of the ILO, two declarations and two covenants are particularly noteworthy as precursors for the Convention. These are:

• Geneva Declaration on the Rights of the Child (1924);

• UN Declaration on the Rights of the Child (1959);

• ICCPR (1966), Articles 23 and 24 (see Chapter 2); and

• ICESCR (1966), Article 10 (see Chapter 3).

Concurrently, in keeping with the general bifurcation of human rights (and their associated legal instruments) into economic/social/cultural rights and civil/political rights, the CRC also exhibits this organizational element. Essentially, in Articles 5-22, civil and political rights are at the forefront within a wide range of contexts. Economic, social and cultural rights become the focal point, then, of Articles 23-39. What, then, distinguishes the CRC from earlier international legal efforts to protect human

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rights for children? In short, focus, breadth, and specificity (in some but not all cases).

Core Elements

To begin, the Preamble of the Convention on the Rights of the Child contextualizes the drafters’ efforts:

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance, …

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth", … . (UNCRC, 1989, Preamble)

The CRC, in the 41 articles that comprise Part I, methodically details human rights for children across a myriad of issue areas: health, education, labor, marriage, trafficking, abuse, asylum/refugee status, identity, parental relations and responsibilities, etc. Part II, following the pattern established by the ICCPR and the ICESCR, establishes a treaty body — the Committee on the Rights of the Child. Its functions are essentially tripartite: accept reports from member states at five-year intervals and report such findings to the UN General Assembly at two-year intervals, monitor state compliance with the CRC, and coordinate

with UN specialized agencies (UNICEF, UNESCO, etc.) to further the implementation of the Convention.

Subsequent to Article 1 defining a child as anyone under the age of 18 (unless by law majority is reached at a younger age), the absolute, single most important core principle is simply ‘what is in the best interests or welfare of the child’. That, then, is the non-negotiable determining factor for protecting a child’s human rights. It is a repeated stipulation throughout the document and a point of intersection with CEDAW regarding the protections for women as equal parenting caregivers of children. Of equivalent importance, Article 8 unambiguously asserts that, “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.” (Article 8(1)) Thus, who a child is, or wants to be, clearly emerges as a second foundational element of the CRC.

Here, however, is a “reality check”:

The total population of children under 18 will only increase slightly, by 4%, from 2.2 billion in 2010 to 2.3 billion by 2025, and will remain at that level by 2050. But children’s share of the world population will decline, from 32% in 2010 to 29% in 2025 and down to 25% by 2050…as fertility rates continue to fall in many regions and people live longer. In addition, the composition and concentration of the global child population will change markedly, with significantly

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more children living in the poorest countries and regions than ever before… . (You and Anthony, 2012, 4; emphasis added)

The above conclusion by UNICEF’s Division of Policy and Strategy clearly indicates that more and more children are going to be born, live, and die in increasingly desperate conditions. Further, the above analysis implicates economic, social and cultural rights as seeming to be of primary importance for children, contrary to other documents that clearly place those rights on par with civil and political rights. However, later analysis will explain this apparent contradiction. Thus, the following discussion begins with the economic, social, and cultural category of human rights.

Economic, Social & Cultural Rights

In one sense, the CRC is simply a statement and application of economic, social and cultural rights to children. This set of rights comes to the forefront as soon as Article 4:

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

The language herein places an obligation on individual states to “…undertake measures to the maximum extent of their available resources… .” It concurrently disallows the claim of not having sufficient resources by further stipulating that “…where needed, within the framework of international co-operation.” This last clause also creates the milieu within which the entire international community carries a shared obligation to protect and promote all children’s economic, social and cultural rights, not just those within particular states.

The obligation of the international community writ large again is underscored by a seemingly simplistic statement: children, by definition, are not autonomous decision-makers, and therefore unable to protect themselves to the fullest extent of the law. The Convention creates a legal framework within which children are protected when their rights are in danger of, or are, being abrogated by those who should be protecting them: the state, parents, other family members, guardians, etc. Thus, it enumerates specific responsibilities of the states parties and international cooperation—that is, the international community— to ensure that one of the most vulnerable groups in any society is protected. Calling upon the international community to act in this collective manner does not occur in other international human rights agreements.

The need for such protections from various forms of governmental, and sadly parental, abuse of authority is perhaps

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best illustrated by the plight of the girl child,4 to be more precise, underage marriage. This topic, addressed in Chapter 8 on CEDAW, reflects the intersection of international human rights instruments, the second theme/thread outlined in the introductory chapter. The profound adverse effects of child marriage cannot be overstated. When it occurs it forever diminishes or eliminates the ability of the girl to obtain other economic, social and cultural rights: her education, appropriate health care, independent economic security, etc.

Often perceived to be a “third world” problem, Nick Kristoff eloquently disabuses us of this notion. In the United States, for example, there were approximately 250,000 child marriages between 2000 and 2010.5 According to an April 2021 study by Unchained At Last, that number was almost 300,000 between 2000 and 2018. As of 2022, 10 states in the U.S. have no minimum age for marriage while two stipulate 14, some states’ records list a category of “14 and younger,” and for 22 the age is 16. Finally, and most relevant for this discussion, it is predominantly girls being married to older men with the permission of their parents or a judge—an official of the state. In several documented cases, the girl was raped by the man she is then forced to marry. Again, in some U.S. states and other countries, this nullifies the rape. Another manifestation is using young girls to gain access to a country. In the U.S., in the last few decades, the number of child marriages has exponentially increased as a tool for immigration. In short, young girls who were born and raised in the U.S., or who carry dual citizenship, are

being used as “passports” for older men to gain entry to the country. This is being facilitated and approved by the U.S. Citizenship and Immigration Service6 and their parents.

Yes, there is an emphatic need for an international effort— the CRC—to protect children from the very people and institutions that are supposed to be acting “in the best interests of the child,” but egregiously are not fulfilling that obligation. Beyond the specific case of child marriage, the ability for children to have adequate food, clothing, shelter, education, health care is imperative. It is not hyperbolic to assert that not only children’s futures, but the future of humanity, is at risk. But, when adults fail to take appropriate action to protect such rights, children and youth are left to their own recourse. That is the subject of children’s civil and political rights.

Civil/Political Rights

Typically, we do not think of children in conjunction with civil and political rights—voting and political participation in general are seen as adult activities. It is arguably this perception that led to the emphasis on economic, social, and cultural rights in the CRC. Concurrently, children’s cognitive and physical development is at much greater risk from poverty and associated malnutrition, dehydration, poor sanitation, and the like. However, significant historical as well as contemporary events warrant the CRCs framers’, and our, attention to children’s civil and political rights. The Soweto Uprising (June 1976),7 Birmingham Children’s

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Crusade (May 1963)8 and the Parkland Strong Movement9 exemplify children and youth exercising their civil rights to freedom of speech, assembly, and others within particular countries. Internationally, most recently we have seen the emergence of similar youth civic engagement on climate change. The “Fridays for Future” campaign was begun in 2018 by Greta Thunberg, a then 15-year-old climate activist from Sweden.10

The CRC is replete with guarantees for participatory rights for children; Articles 12-17 enumerate civic engagement rights, right to privacy, freedom of thought, and finally access to diverse sources of information for the child. Of particular note are Articles 12, 13, and 15. Taken together, they ensure that children and youth may be active participants in civic engagement activities. The three articles enshrine freedom of expression, communication, and assembly thereby enabling the full range of peaceful civic engagement for children and youth.

Protecting children’s civil and political rights does not end with civic engagement rights, but also extends to those pertaining to the justice system and due process rights — arrest, legal representation, trials, sentencing, etc. Returning to Article 12, it extends the general freedom of expression to the judicial realm: “…the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, … .” (Article 12(2)) Building on this, Articles 37 and 40 were designed to address the rights of children who are in detention for criminal matters. In addition to reinforcing the Convention Against

Torture (see Chapter 5), Article 37 unequivocally states, “[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” (Article 37(a)) Article 40 augments this emphasizing “…the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.” (Article 40(1)) Even without explicitly restating it here, the CRC emphasis consistently remains on what is in the best interest of the child.

Extreme Circumstances

Three of the many severely dangerous realities pose extraordinary challenges for protecting and promoting human rights for children: the ongoing and expanding global refugee crisis, human trafficking and exploitation, and the use of child soldiers. The CRC addresses each of these to varying degrees of success.

Asylum Seekers and Refugees

Of particular concern in the context of civil and political rights are the extraordinary events surrounding children asking for asylum and seeking refugee status as discussed in Chapter 6. Articles 9, 20, and 22 of the CRC each tackle various aspects of children’s rights under conditions of asylum and/or refugee status. The first of these articles shields children from forced separation from parents or other family members. And,

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LURD child soldier in Liberia

[w]here such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. (Article 9(4))

Article 22, then, goes on to mandate that any state party must cooperate

…with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. (Article 22(2))

Global events exacerbating children’s rights in this context include the global climate crisis, Russian Federation’s invasion of Ukraine, ongoing Syrian civil war, and increasingly unstable sociopolitical conditions in some Central and South American countries. States and the international community are meeting the challenges in some respects, failing in others, and actually explicitly violating children’s rights in other scenarios.

Exploitation and Child Trafficking

Returning to labor rights, virtually every culture has practiced child labor at some time in its history. Many countries continue to do so, either openly and/or in a clandestine manner. While neither is acceptable under international law, those countries that refuse to acknowledge the practice are, arguably, engaging in the most insidious manifestations. Among those stipulated are outright slavery, debt bondage, prostitution, and pornography.

Human trafficking facilitates and expands the abilities of violators to abuse children via these forms of illicit child labor.12 The CRC’s drafting parties were purposeful in the sequencing of specific articles to underscore the multiplicative adverse effects at the nexus of extreme situations of children’s human rights violations. Article 32 links preventing a general economic exploitation of children with children being protected from illicit narcotic and psychotropic drug use, production, or trafficking of such (Article 33), and with a prohibition on all forms of child sexual abuse (Article 34). Then Article 35, in a succinct and all- inclusive manner, proscribes child trafficking in all of its manifestations:

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

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Further, Article 35 extends the reach of the CRC beyond a “mere” proscription of child exploitation, abuse, and trafficking. Replicating the language of other articles, herein lies a commensurate obligation on states parties to proactively prevent it. Perhaps most importantly, the language of the initial clause compels countries to bring national law into compliance with international law and to cooperate with other countries to thwart trafficking, reiterating the call for collective action on behalf of children.

Child Soldiers

Beyond Article 38’s comments on children in situations of armed conflict, the particularly egregious exploitation of children as armed combatants needs to be addressed. Like other forms of child labor and exploitation, the use of children in armed conflict has deep, deep roots in human history. And, like those other forms, it was an accepted and lauded practice. Then and now,

the inclusion of children in the military and/or armed conflict ranges from outright conscription to economic incentives (poverty) and nationalistic induced volunteerism. At this juncture it becomes relevant to look back at the 1980s—the

decade in which the CRC was being discussed and drafted.

Two of many situations form a significant backdrop for the CRC’s efforts to address child soldiers: the growth of the Shining Path in Peru13 throughout the 1980s, and the emergence of the Lord’s Resistance Army (LRA) in Uganda14 in the latter part of the decade. UNICEF and other international NGOs have repeatedly documented the use of child soldiers by these two groups and dozens, perhaps hundreds, of others. But guerrilla or militia groups are far from alone; the use of child soldiers extends to the official militaries of a copious number of countries in every region of the world.

Despite these realities, in an arguably disturbing and perplexing manner, the CRC authorizes such practices! Article 38(2) permits states to have children as young as 15 to be directly involved in “hostilities” despite Article 1 defining a child as anyone under the age of 18. Not only may states have child soldiers, but they may actively recruit them beginning at age 15. (Article 38(3))

Conclusion

After such a lengthy analysis, what are we left with as takeaways regarding human rights for children? In other words, stepping back from the trees, what does the forest look like? There are a number of broad observations that advance our discourse. First, since its coming into force in 1990, arguments

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have emerged that the legal principle of jus cogens (literally, “compelling law”) applies to some parts, perhaps all, of the CRC. Fundamentally, this core general principle of international law stipulates that an agreement or law cannot be abrogated, regardless of whether or not a state has adopted a particular international agreement. That is, the legal practice or protection is deemed to be of such high value for creating a just society that it MUST be adhered to. In this case, it would mean that the CRC

applies to all countries regardless of whether or not they have ratified it.

A second critical point is that, contrary to the specious assertions by U.S. lawmakers, the CRC does not aim to take away parental rights. Quite the contrary, the Convention repeatedly asserts and protects parental rights with only one caveat. The best interests of the child override the rights of the parents or guardians—clearly necessary in cases of child abuse/ neglect. But this limitation also becomes arguably applicable vis- à-vis issues such as health care for serious medical conditions, vaccinations, and sexual identity and orientation.

The intersection of childhood with other human rights dynamics provides a third area in which further discussion is warranted. In particular, the ways in which CEDAW and CERD have an impact on the CRC and vice versa provide ample room for analysis. In this same vein, because UNDRIP (see Chapter 10) is not legally binding, then those articles in the CRC that specifically recognize indigenous children take on greater significance.

And finally, a brief return to the U.S., which again is in a precarious position. As with other international human rights instruments, beginning with the UDHR, the U.S. has played a singularly prominent leadership role in drafting a vast array of international agreements. The Convention on the Rights of the Child is among them! However, since Somalia’s ratification of it in

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Expandable map of CRC signatories (November 30, 1989)

figure:%23

2015, the U.S. is the only country in the world that has not ratified this human rights document. It is commonly acknowledged that there are three arguments that have been used to prevent this: limitation on state sovereignty, limitations on parental rights, and preventing minors from obtaining an abortion.15 This last point becomes specious given the 2022 decision by the Supreme Court of the United States regarding a woman’s right to an abortion, regardless of age (see Chapter 8). If, as numerous legal scholars have argued, the CRC is subject to jus cogens, then the U.S.’s ratification or failure thereof becomes a moot point. Children’s rights are and will be legally protected regardless of the political machinations of any particular country’s government.

Convention on the Rights of the Child

Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989  Entry into force: 2 September 1990, in accordance with article 49

Preamble

The States Parties to the present Convention,

Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom,

Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

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Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,

Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children,

Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) ; and the Declaration on the Protection of Women and Children in

Emergency and Armed Conflict, Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration,

Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international cooperation for improving the living conditions of children in every country, in particular in the developing countries,

Have agreed as follows:

PART I

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

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2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.    

Article 4

Article 5

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 6

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.  

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Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re- establishing speedily his or her identity.

Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in

accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.

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Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.      

Article 11

1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 13

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either

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orally, in writing or in print, in the form of art, or through any other media of the child's choice.

2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 14

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.      

Article 15

1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

Article 17

States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.

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To this end, States Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;

(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;

(d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;

(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary

responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.

Article 19

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral,

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investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.

Article 21

States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with

applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in inter- country adoption, the placement does not result in improper financial gain for those involved in it;

(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.

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Article 22

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.      

Article 23

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development

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4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.

Article 24

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking- water, taking into consideration the dangers and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventive health care, guidance for parents and family planning education and services.

3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.

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Article 25

States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.

Article 26

1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.

2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

Article 27

1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.

2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and

financial capacities, the conditions of living necessary for the child's development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

Article 28

1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to all;

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(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

(d) Make educational and vocational information and guidance available and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.

2. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.

Article 29

1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.

2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to

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the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Article 30

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

Article 31

1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.      

Article 32

1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

Article 33

States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international

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treaties, and to prevent the use of children in the illicit production and trafficking of such substances.

Article 34

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

Article 35

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

Article 36

States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of

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the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Article 38

1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.    

Article 39

States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self- respect and dignity of the child.

Article 40

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

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(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unles s it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent,

independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

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Article 41

Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:

(a) The law of a State party; or

(b) International law in force for that State.

PART II

Article 42

States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.

Article 43

1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.

2. The Committee shall consist of ten experts of high moral standing and recognized competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to

equitable geographical distribution, as well as to the principal legal systems.

3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.

4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention.

5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election

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shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting.

7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee.

8. The Committee shall establish its own rules of procedure.

9. The Committee shall elect its officers for a period of two years.

10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.

11.The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.

12.With the approval of the General Assembly, the members of the Committee established under the present Convention shall

receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.

Article 44

1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights

(a) Within two years of the entry into force of the Convention for the State Party concerned;

(b) Thereafter every five years.

2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfillment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.

3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided.

4. The Committee may request from States Parties further information relevant to the implementation of the Convention.

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5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities.

6. States Parties shall make their reports widely available to the public in their own countries.

Article 45

In order to foster the effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention:

(a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;

(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations

Children's Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications;

(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child;

(d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.

PART III

Article 46

The present Convention shall be open for signature by all States.

Article 47

The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

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Article 48

The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 49

1. The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.

Article 50

1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary- General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the

conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval.

2. An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two thirds majority of States Parties.

3. When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted.

Article 51

1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General.

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Article 52

A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

Article 53

The Secretary-General of the United Nations is designated as the depositary of the present Convention.

Article 54

The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS THEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective governments, have signed the present Convention.

Signatories

Tap here to view the voting record for the Convention on the Rights of the Child.     

Discussion Questions

1. What do you think is/are the most significant aspects or features of the CRC? Explain.

2. Beyond what is discussed in this chapter, how might the CRC be applied to current or recent situations or events, either within a single country or between/across countries?

3. The U.S. is the only country refusing to ratify the CRC. Do you think that its reasons are, or were at the time, justified given the language of the document?

4. Do you think that jus cogens should apply to the CRC?

5. Given that the CRC focuses on arguably the most vulnerable segment of the global population, why do you think that countries and the international community struggle with enforcing the CRC in particular?

6. Would the creation of a dedicated judicial/court system to enforce and protect children’s human rights be beneficial or not? Explain.

7. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the CRC?

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https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en

Chapter 10

UN DECLARATION on the RIGHTS of INDIGENOUS PEOPLES (UNDRIP)

Adopted: Sept. 13, 2007 Entry into Force: Non-binding

Initial Considerations

Often overlooked as obvious, the essential feature of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) remains that it is inherently an agreement between states. That is, UNDRIP is not an agreement between indigenous peoples and states; this, despite the exhaustive, meticulous, and tenacious participation by a wide variety of indigenous peoples in the 25-year drafting process (1982-2007; see timeline). The significance of this should not be dismissed. It reflects the fundamental, persistent failure of UN member states to recognize indigenous peoples as equal partners in international/global and regional decision-making. In addition, its non-binding aspirational

character (much like the UDHR) places no legal obligation on states to adhere to the human rights detailed therein. These two realities leave us with a central question: What is the value of UNDRIP, and the protracted negotiations that led to it, for protecting and promoting human rights for indigenous peoples?1 For a final time, let’s turn to our historical context theme/thread.

Background

Many scholars and practitioners begin UNDRIP’s story in 1982 when the UN Economic and Social Council (ECOSOC) created the Working Group on Indigenous Populations (WGIP) “… with the mandate to develop a set of minimum standards that would protect indigenous peoples” (UNPFII “Historical Overview and Process,” para. 1). However, this action did not initiate negotiations between indigenous peoples and member states of the international community. Rather, some of the roots of such activity—and thereby of UNDRIP in particular—extend back to 1923 and the diplomacy of the Haudenosaunee (Iroquois Confederacy; Six Nations Confederacy).

When Cayuga Chief Deskaheh traveled to Geneva in 1923 to address the League of Nations about the right of his people to live freely on their own lands, practice their own religion and follow their own laws, the door was shut in his face by what he called “cruel indifference.”

Deskaheh’s courageous attempt to bring justice to his Haudenosaunee people was the first step in an ongoing quest that reached a benchmark almost 85 years later when the U.N. General Assembly adopted the Declaration on the Rights of Indigenous Peoples on Sept. 13 [2007].

One hundred and forty-three member states voted yes, 11 states abstained, and four voted against the adoption.

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Interactive 10.1: Regional Human Rights Timeline

Tap on the thumbnail above to explore an interactive timeline documenting regional human

rights instruments.

Canada, one of the countries that blocked Deskaheh in March 1923 from entering the League of Nation’s plenary session, continued its negation of the indigenous rights embodied by the declaration, and was joined by Australia, New Zealand and the United States in voting no. (Toensing, 2007; emphasis added)

Thus, not only have indigenous peoples actively undertaken civic engagement on a global and international scale, they also have experienced (and continue to experience) entrenched opposition to their human rights advocacy.

Yet, the story of diplomacy and negotiation between indigenous peoples and states does not start there, either. The Two Row Treaty (Guswenta) between, initially, the Dutch and the Haudenosaunee in 16132 established the equal and parallel

existence of the Dutch and the Haudenosaunee. Later, Two Row treaties would be promulgated between the Haudenosaunee and the English, French, and, eventually, the fledgling U.S.

“People” & “Peoples”

This brief glimpse at the history of Haudenosaunee diplomacy exemplifies the centuries-long efforts by indigenous peoples to ensure recognition of, and respect for, their right to self-determination. Self-determination is akin to the concept of sovereignty for states and, as described by Bernard Parker, Snipe Clan Haudeanesua (sachem) of the Seneca people, “the principle of exercising sovereign rights is entrenched in the collective rights of the people” (Parker, 1991).

To risk oversimplification, the debate, in part, centered around one letter in the English alphabet: ‘s.’ When attached or omitted from the word ‘people’, that letter signifies whether or not a community, society or, indeed, ‘people’ as a whole will be recognized as such. Further, and equally as important, it reflects a recognition that not all indigenous communities are the same. To be precise, ‘people’ denotes a single collective of individuals, whereas ‘peoples’ denotes multiple societies or collectives. Indigenous peoples insisted on the inclusion of the ‘s’ while most states strongly advocated its omission. Indigenous peoples, then, are not merely another minority group within a larger dominant society. To the contrary, each indigenous people is a distinctive

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https://www.youtube.com/watch?v=RcVpIIzykgQ

society with its own language, culture, political, social and economic structures, practices, etc.

It was recognition and acceptance of this vital concept that became the focal point of much antagonistic debate throughout the 25 years. Not just between indigenous peoples’ delegations to the UNWGIP negotiation sessions and member states, but among the member states themselves.3 Several articles within UNDRIP exemplify the compromise that was reached in some cases. For example, from the outset, the language of Article 1 explicitly reflects a conjoined individual and collective approach to human rights in this context.

Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law. (emphasis added)

Alternatively, Article 3 clearly attaches self-determination only to each indigenous people as a collective, whole entity.

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (emphasis added)

However, it is worth noting that Article 4 limits that right in a very significant manner.

Indigenous peoples, in exercising their right to self- determination, have the right to autonomy or self- government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. (emphasis added)

Thus, the compromise regarding self-determination was, as was repeatedly argued by the CANZUS (Canada, Australia, New Zealand, and the U.S.) states, the right to internal self- determination.

Debate about such a fundamental, core question — indigenous peoples’ self-determination — translated into no less contentious deliberations around other, more specific issues. Cultural rights (e.g., control of education systems, language preservation, spirituality), territorial integrity (e.g., resource management, through passage, access to and protection of sacred sites), and dispute resolution (jurisdiction, etc.) exemplify the discourses that occurred and characterize various clusters of articles ultimately included in UNDRIP.

Thus, the question posed at the outset—what is the value of UNDRIP, and the protracted negotiations that led to it, for protecting and promoting human rights for indigenous peoples— may be answered as follows: UNDRIP stipulates indigenous peoples’ rights in each of the contexts described above; it does not ultimately resolve the contestations between indigenous peoples and dominant societies surrounding those issues. It

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provides a framework for additional discourse and reflects a sincere, concerted effort to acknowledge the contestations without being dismissive; it fails to hold states accountable in any legally binding way for their past, present, or future digressions against indigenous peoples or individuals.

Ultimately, while acknowledging that indigenous peoples exist,4 the UNDRIP fails to recognize indigenous peoples as truly equal partners in international/global decision-making. For example, and as a result of UNDRIP negotiations, the United Nations created the UN Permanent Forum on Indigenous Issues. Beginning in 2001, this body is tasked with providing advice and expertise to other UN bodies on issues related to, and having an impact on, indigenous peoples worldwide. What it does not do is provide full membership for indigenous peoples at the UN.

Conclusion

As a final note, structurally UNDRIP echoes a somewhat holistic approach to recognizing, protecting and promoting indigenous peoples’ human rights. Unlike many, many other international agreements, this document has no distinct separation of the articles into parts or sections. Rather, it is a single whole delineation of indigenous peoples’ human rights, albeit organized in thematic clusters. Without reading too much into this, it does reinforce the notion that while specific rights need to be recognized, protected, and promoted, there is an

inherent, intrinsic connectedness among them. One specific right, or type of right, cannot be ensured without mutually ensuring all other rights; it is a ‘both/and’ rather than ‘either/or’ approach.

United Nations Declaration on the Rights of Indigenous Peoples

Adopted by General Assembly Resolution 61/295 on 13 September 2007

Preamble

The General Assembly,

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Unity Village crafts, Samburu, Kenya. Photo credit: Ulrike Gutberlet

Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter,

Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,

Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,

Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind,

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political,

economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,

Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States,

Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur,

Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,

Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment,

Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world,

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Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child,

Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character,

Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States,

Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, as well as the Vienna Declaration and Programme of Action, affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development,

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law,

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith,

Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned,

Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples,

Believing that this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations system in this field,

Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples,

Recognizing that the situation of indigenous peoples varies from region to region and from country to country and that the

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significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration,

Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect:

Article 1

Article 2

Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.  

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 6

Every indigenous individual has the right to a nationality.

Article 7

1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.

2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

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Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 9

Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Article 10

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12

1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and

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have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.

2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 13

1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

Article 14

1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.

2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination.

3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.

Article 15

1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.

2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

Article 16

1. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non- indigenous media without discrimination.

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2. States shall take effective measures to ensure that State- owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity.

Article 17

1. Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour law.

2. States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment.

3. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary.

Article 18

Indigenous peoples have the right to participate in decision- making in matters which would affect their rights, through representatives chosen by themselves in accordance with their

own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 20

1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

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2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 22

1. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.

2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

Article 23

Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.    

Article 24

1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services.

2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional

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occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 29

1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

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2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Article 31

1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 33

1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the

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cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 35

Indigenous peoples have the right to determine the responsibilities of individuals to their communities.

Article 36

1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

Article 39

Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.

Article 40

Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

Article 41

The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.

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Article 42

The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Article 43

The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

Article 44

All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

Article 45

Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future.

Article 46

1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any

action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non- discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

Signatories

“[O]n 13 September 2007, the Declaration on the Rights of Indigenous Peoples was adopted by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). Tap here to view the voting record. Since adoption of the Declaration, Australia, New

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Zealand, United States and Canada have all reversed their positions and expressed support for the Declaration. Colombia and Samoa have also endorsed the Declaration.” Tap here to read more.

Discussion questions

1. Even though UNDRIP is not legally binding, to what extent are states obligated to protect and promote the rights stipulated in the document? That is, are aspirational human rights agreements nonetheless “binding” on their signatories?

2. In what specific ways does UNDRIP protect the right of self- determination of indigenous peoples? In what specific ways does UNDRIP limit the right of self-determination of indigenous peoples? What articles illustrate your responses and why?

3. Is there an inherent tension between indigenous peoples’ right to decide who, in fact, are “of the people” and states’ rights to grant citizenship?

4. Are indigenous peoples, as stipulated in UNDRIP, entitled to the return of all sacred objects and human remains? Similarly, should indigenous peoples be the sole determiners of access to sites that are considered sacred by them?

5. To what degree do the rights of indigenous peoples extend to their being the sole arbiters of natural resource access and use within their territories? Similarly, do indigenous peoples have

unilateral control over traditional knowledge and its applications?

6. What is the future of UNDRIP? Will it actually lead to a legally binding covenant or convention much as the UDHR led to the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights?

7. Is your country a state party to the Declaration? In what ways has it adhered to, ignored, or explicitly violated it?

8. How are each of the three themes/threads — historical context, intersections and tensions, and challenges for implementation and compliance — reflected in the UNDRIP?

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Appendices

• Appendix A: Charter of the United Nations • Appendix B: Optional Protocol to the International

Covenant on Civil and Political Rights • Appendix C: Second Optional Protocol on the

International Covenant on Civil and Political Rights • Appendix D: Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights • Appendix E: Protocol to the Convention on the Status

of Refugees • Glossary • Endnotes • References • Image credits

PREAMBLE TO THE CHARTER OF THE UNITED NATIONS

WE THE PEOPLES OF THE UNITED NATIONS,    DETERMINED

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDS

to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and

to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and

to employ international machinery for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS    TO ACCOMPLISH THESE AIMS

Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

Appendix A: Charter of the United Nations

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CHAPTER I

PURPOSES AND PRINCIPLES

Article 1

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and

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shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

CHAPTER II

MEMBERSHIP

Article 3

The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110.   

Article 4

1. Membership in the United Nations is open to a other peace- loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

2. The admission of any such state to membership in the Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

Article 5

A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.

Article 6

A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.   

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CHAPTER III

ORGANS

Article 7

1. There are established as the principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat.

2. Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.

Article 8

The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.

CHAPTER IV

THE GENERAL ASSEMBLY

Composition

Article 9

1. The General Assembly shall consist of all the Members of the United Nations.

2. Each Member shall have not more than five representatives in the General Assembly.

Functions and Powers

Article 10

The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.

Article 11

1. The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.

2. The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make

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recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.

3. The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.

4. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10.

Article 12

1. While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

2. The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.

Article 13

1. The General Assembly shall initiate studies and make recommendations for the purpose of:     (a) promoting international co-operation in the political field and encouraging the progressive development of international law and its codification;     (b) promoting international co-operation in the economic, social, cultural, educational, and health fields, an assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

2. The further responsibilities, functions and powers of the General with respect to matters mentioned in paragraph ) above are set forth in Chapters IX and X.

Article 14

Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.

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Article 15

1. The General Assembly shall receive and consider annual and special reports from the Security Council; these reports shall include an account of the measures that the Security Council has decided upon or taken to maintain international peace and security.

2. The General Assembly shall receive and consider reports from the other organs of the United Nations.

Article 16

The General Assembly shall perform such functions with respect to the international trusteeship system as are assigned to it under Chapters XII and XIII, including the approval of the trusteeship agreements for areas not designated as strategic.

Article 17

1. The General Assembly shall consider and approve the budget of the Organization.

2. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.

3. The Assembly shall consider and approve any financial and budgetary arrangements with specialize agencies referred to in Article 57 and shall examine the administrative budgets of such

specialized agencies with a view to making recommendations to the agencies concerned.

Voting

Article 18

1. Each member of the General Assembly shall have one vote.

2. Decisions of the General Assembly on important questions shall be made by a two- thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non- permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 of Article 86, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions.

3. Decisions on other questions, including the determination of additional categories of questions to be decided by a two- thirds majority, shall be made by a majority of the members present and voting. 

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Article 19

A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member.

Article 20

The General Assembly shall meet in regular annual sessions and in such special sessions as occasion may require. Special sessions shall be convoked by the Secretary-General at the request of the Security Council or of a majority of the Members of the United Nations.

Article 21

The General Assembly shall adopt its own rules of procedure. It shall elect its President for each session.

Article 22

The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions. 

CHAPTER V

THE SECURITY COUNCIL

Composition

Article 23

1. The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist , the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first in- stance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution.

2. The non-permanent members of the Security Council shall be elected for a term of two years. In the first election of the non- permanent members after the increase of the membership of the Security Council from eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election.

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3. Each member of the Security Council shall have one representative.

Functions and Powers

Article 24

1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.   

Article 26

In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United-Nations for the establishment of a system for the regulation of armaments.

Voting

Article 27

1. Each member of the Security Council shall have one vote.

2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.       

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Procedure

Article 28

1. he Security Council shall be so organized as to be able to function continuously. Each member of the Security Council shall for this purpose be represented at times at the seat of the Organization.

2. The Security Council shall hold meetings at which each of its members may, if it so desires, be represented by a member of the government or by some other specially designated representative.

3. The Security Council may hold meetings at such places other than the seat of the Organization as in its judgment will best facilitate its work.

Article 29

The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.

Article 30

The Security Council shall adopt its own rules of procedure, including the method of selecting its President.   

Article 31

Any Member of the United Nations which is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Security Council whenever the latter considers that the interests of that Member are specially affected.

Article 32

Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall any down such conditions as it deems just for the participation of a state which is not a Member of the United Nations.

CHAPTER VI

PACIFIC SETTLEMENT OF DISPUTES

Article 33

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to

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regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

Article 34

The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

Article 35

1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.

2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.

3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.

Article 36

1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.

2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.

3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

Article 37

1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council.

2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of

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international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.

Article 38

Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

CHAPTER VII

ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding

upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

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Article 43

1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.

3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

Article 44

When Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the

decisions of the Security Council concerning the employment of contingents of that Member's armed forces.

Article 45

In order to enable the Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action. The strength and degree of readiness of these contingents and plans for their combined action shall be determined, within the limits laid down in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the Military Committee.

Article 46

Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

Article 47

1. There shall be established a Military Staff Committee to advise and assist the Security Council on questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.

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2. The Military Staff Committee consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee's responsibilities re- quires the participation of that Member its work.

3. The Military Staff Committee be responsible under the Security Council for the strategic direction of any armed forces paced at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently.

4. The Military Staff Committee, with the authorization of the security Council and after consultation with appropriate regional agencies, may establish sub-committees.

Article 48

1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

Article 49

The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

Article 50

If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those problems.

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

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CHAPTER VIII

REGIONAL ARRANGEMENTS

Article 52

1. Nothing in the present Charter the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.

4. This Article in no way the application of Articles 34 and 35.   

Article 53

1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.

2. The term enemy state as used in para- graph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter.

Article 54

The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.   

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CHAPTER IX

INTERNATIONAL ECONOMIC AND SOCIAL CO-OPERATION

Article 55

With a view to the creation of conditions of stability and well- being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, 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 cooperation; and

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

Article 56

All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

Article 57

1. The various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63.

2. Such agencies thus brought into relationship with the United Nations are hereinafter referred to as specialized agencies.

Article 58

The Organization shall make recommendations for the co- ordination of the policies and activities of the specialized agencies.

Article 59

The Organization shall, where appropriate, initiate negotiations among the states concerned for the creation of any new specialized agencies required for the accomplishment of the purposes set forth in Article 55.

Article 60

Responsibility for the discharge of the functions of the Organization set forth in this Chapter shall be vested in the General Assembly and, under the authority of the General

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Assembly, in the Economic and Social Council, which shall have for this purpose the powers set forth in Chapter X.

CHAPTER X

THE ECONOMIC AND SOCIAL COUNCIL

Composition

Article 61

1. The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the General Assembly.

2. Subject to the provisions of paragraph 3, eighteen members of the Economic and Social Council shall be elected each year for a term of three years. A retiring member shall be eligible for immediate re-election.

3. At the first election after the increase in the membership of the Economic and Social Council from twenty-seven to fifty-four members, in addition to the members elected in place of the nine members whose term of office expires at the end of that year, twenty-seven additional members shall be elected. Of these twenty-seven additional members, the term of office of nine members so elected shall expire at the end of one year, and of nine other members at the end of two years, in

accordance with arrangements made by the General Assembly.

4. Each member of the Economic and Social Council shall have one representative.

Functions and Powers

Article 62

1. The Economic and Social Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.

2. It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.

3. It may prepare draft conventions for submission to the General Assembly, with respect to matters falling within its competence.

4. It may call, in accordance with the rules prescribed by the United Nations, international conferences on matters falling within its competence. 

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Article 63

1. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly.

2. It may co-ordinate the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations.

Article 64

1. The Economic and Social Council may take appropriate steps to obtain regular reports from the specialized agencies. may make arrangements with the Members of the United Nations and with the specialized agencies to obtain reports on the steps taken to give effect to its own recommendations and to recommendations on matters falling within its competence made by the General Assembly.

2. It may communicate its observations on these reports to the General Assembly.     

Article 65

The Economic and Social Council may furnish information to the Security Council and shall assist the Security Council upon its request.

Article 66

1. The Economic and Social Council shall perform such functions as fall within its competence in connexion with the carrying out of the recommendations of the General Assembly.

2. It may, with the approval of the General Assembly, perform services at the request of Members of the United Nations and at the request of specialized agencies.

3. It shall perform such other functions as are specified elsewhere in the present Charter or as may be assigned to it by the General Assembly.

Voting

Article 67

1. Each member of the Economic and Social Council shall have one vote.

2. Decisions of the Economic and Social Council shall be made by a majority of the members present and voting.

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Procedure

Article 68

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 for the performance of its functions.

Article 69

The Economic and Social Council shall invite any Member of the United Nations to participate, without vote, in its deliberations on any matter of particular concern to that Member.

Article 70

The Economic and Social Council may make arrangements for representatives of the specialized agencies to participate, without vote, in its deliberations and in those of the commissions established by it, and for its representatives to participate in the deliberations of the specialized agencies.

Article 71

The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its

competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.

Article 72

1. The Economic and Social Council shall adopt its own rules of procedure, including the method of selecting its President.

2. The Economic and Social Council shall meet as required in accordance with its rules, which shall include provision for the convening of meetings on the request of a majority of its members.

CHAPTER XI

DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES

Article 73

Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of

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international peace and security established by the present Charter, the well- being of the inhabitants of these territories, and, to this end:

(a) to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

(b) to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

(d) to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and

(e) to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and

other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.

Article 74

Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.

CHAPTER XII

INTERNATIONAL TRUSTEESHIP SYSTEM

Article 75

The United Nations shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements. These territories are hereinafter referred to as trust territories.   

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Article 76

The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be:

(a) to further international peace and security;

(b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self- government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement;

(c) to encourage respect for human rights and for fundamental freedoms for all without : as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and

(d) to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their, and also equal treatment for the latter in the administration of justice, with- out prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80.

Article 77

1. The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:

(a) territories now held under mandate;

(b) territories which may be detached from enemy states as a result of the Second World War; and

2. It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trustee-ship system and upon what terms.

Article 78

The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.

Article 79

The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the

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mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.

Article 80

1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.

2. Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77.

Article 81

The trusteeship agreement shall in each case include the terms under which the trust territory will be administered and designate the authority which will exercise the administration of the trust territory. Such authority, hereinafter called the administering authority, may be one or more states or the Organization itself.

Article 82

There may be designated, in any trusteeship agreement, a strategic area or areas which may include part or all of the trust territory to which the agreement applies, without prejudice to any special agreement or agreements made under Article 43.

Article 83

1. All functions of the United Nations relating to strategic areas, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the Security Council.

2. The basic objectives set forth in Article 76 shall be applicable to the people of each strategic area. 43 3. The Security Council shall, subject to the provisions of the trusteeship agreements and without prejudice to security considerations, avail itself of the assistance of the Trusteeship Council to perform those functions of the United Nations under the trusteeship system relating to political, economic, social, and educational matters in the strategic areas.

Article 84

It shall be the duty of the administering authority to ensure that the trust territory shall play its part in the maintenance of international peace and security. To this end the administering authority may make use of volunteer forces, facilities, and

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assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the administering authority, as well as for local defence and the maintenance of law and order within the trust territory.

Article 85

1. The functions of the United Nations with regard to trusteeship agreements for all areas not designated as strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the General Assembly.

2. The Trusteeship Council, operating under the authority of the General Assembly, shall assist the General Assembly in carrying out these functions.

CHAPTER XIII

THE TRUSTEESHIP COUNCIL

Composition

Article 86

1. The Trusteeship Council shall consist of the following Members of the United Nations:

(a) those Members administering trust territories;

(b) such of those Members mentioned by name in Article 23 as are not administering trust territories; and

(c) as many other Members elected for three-year terms by the General Assembly as may be necessary to ensure that the total number of members of the Trusteeship Council is equally divided between those Members of the United Nations which administer trust territories and those which do not.

2. Each member of the Trusteeship Council shall designate one specially qualified person to represent it therein.

Functions and Powers

Article 87

The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may:

(a) consider reports submitted by the ad- ministering authority;

(b) accept petitions and examine them in consultation with the administering authority;

(c) provide for periodic visits to the respective trust territories at times agreed upon with the administering authority; and

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(d) take these and other actions in conformity with the terms of the trusteeship agreements.

Article 88

The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement of the inhabitants of each trust territory, and the administering authority for each trust territory within the competence of the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire.

Voting

Article 89

1. Each member of the Trusteeship Council shall have one vote.

2. Decisions of the Trusteeship Council shall be made by a majority of the members present and voting.

Procedure

Article 90

1. The Trusteeship Council shall adopt its own rules of procedure, including the method of selecting its President.

2. The Trusteeship Council shall meet as required in accordance with its rules, which shall include provision for the convening of meetings on the request of a majority of its members.

Article 91

The Trusteeship Council shall, when appropriate, avail itself of the assistance of the Economic and Social Council and of the specialized agencies in regard to matters with which they are respectively concerned.

CHAPTER XIV

THE INTERNATIONAL COURT OF JUSTICE

Article 92

The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

Article 93

1. All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.

2. A state which is not a Member of the United Nations may become a party to the Statute of the International Court of

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Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.

Article 94

1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

Article 95

Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.

Article 96

1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

CHAPTER XV

THE SECRETARIAT

Article 97

The Secretariat shall comprise a Secretary- General and such staff as the Organization may require. The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council. He shall be the chief administrative officer of the Organization.

Article 98

The Secretary-General shall act in that capacity in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs. The Secretary-General shall make an annual report to the General Assembly on the work of the Organization.     

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Article 99

The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.

Article 100

1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might on their position as international officials responsible only to the Organization.

2. Each Member of the United Nations undertakes to respect the exclusively inter- national character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

Article 101

1. The staff shall be appointed by the Secretary-General under regulations established by the General Assembly.

2. Appropriate staffs shall be permanently assigned to the Economic and Social Council, the Trusteeship Council, and, as required, to other organs of the United Nations. These staffs shall form a part of the Secretariat.

3. The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.

CHAPTER XVI

MISCELLANEOUS PROVISIONS

Article 102

1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph I of this Article may invoke that treaty or agreement before any organ of the United Nations.

Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

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Article 104

The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

Article 105

1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.

3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.

CHAPTER XVII

TRANSITIONAL SECURITY ARRANGEMENTS

Article 106

Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council

enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, 30 October 1943, and France, shall, in accordance with the provisions of paragraph 5 of that Declaration, consult with one another and as occasion requires with other Members of the United Nations with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.

Article 107

Nothing in the present Charter shall in- validate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.

CHAPTER XVIII

AMENDMENTS

Article 108

Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

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Article 109

1. A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the conference.

2. Any alteration of the present Charter recommended by a two- thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including the permanent members of the Security Council.

3. If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council.       

CHAPTER XIX

RATIFICATION AND SIGNATURE

Article 110

1. The present Charter shall be ratified by the signatory states in accordance with their respective constitutional processes.

2. The shall be deposited with the Government of the Unite States of America, which shall notify all the signatory states of each deposit as well as the Secretary-General of the Organization when he has been appointed.

3. The present Charter shall come into force upon the deposit of by the Republic of China, France, the Union of Soviet Socialist, the United King- dom of Great Britain and Northern Ireland, and the United States of America, and by a majority of the other signatory states. A protocol of the deposited shall thereupon be drawn up by the Government of the United States of America which shall communicate copies thereof to all the signatory states.

4. The states signatory to the present Charter which ratify it after it has come into force will become original Members of the United Nations on the date of the deposit of their respective ratifications. 

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Article 111

The present Charter, of which the Chinese, French, Russian, English, and Spanish texts are equally authentic, shall remain deposited in the archives of the Government of -the United States of America. Duly certified copies thereof shall be transmitted by that Government to the Governments of the other signatory states.

IN FAITH WHEREOF the representatives of the Governments of the United Nations have signed the present Charter.

DONE at the city of San Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five.

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Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force March 23, 1976.

The States Parties to the present Protocol,

Considering that in order further to achieve the purposes of the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) and the implementation of its provisions it would be appropriate to enable the Human Rights Committee set up in part IV of the Covenant (hereinafter referred to as the Committee) to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.

Have agreed as follows:

Article I

A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee

to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.

Article 2

Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.

Article 3

The Committee shall consider inadmissible any communication under the present Protocol which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the Covenant.

Appendix B: Optional Protocol to the International Covenant on Civil and Political Rights

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Article 4

1. Subject to the provisions of article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant.

2. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

Article 5

1. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned.

2. The Committee shall not consider any communication from an individual unless it has ascertained that:

(a) The same matter is not being examined under another procedure of international investigation or settlement;     (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.

3. The Committee shall hold closed meetings when examining communications under the present Protocol.

4. The Committee shall forward its views to the State Party concerned and to the individual.

Article 6

The Committee shall include in its annual report under article 45 of the Covenant a summary of its activities under the present Protocol.

Article 7

Pending the achievement of the objectives of resolution 1514(XV) adopted by the General Assembly of the United Nations on 14 December 1960 concerning the Declaration on the Granting of Independence to Colonial Countries and Peoples, the provisions of the present Protocol shall in no way limit the right of petition granted to these peoples by the Charter of the United Nations and other international conventions and instruments under the United Nations and its specialized agencies.

Article 8

1. The present Protocol is open for signature by any State which has signed the Covenant.

2. The present Protocol is subject to ratification by any State which has ratified or acceded to the Covenant. Instruments of

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ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State which has ratified or acceded to the Covenant.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States which have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 9

1. Subject to the entry into force of the Covenant, the present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or instrument of accession.

2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or instrument of accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 10

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 11

1. Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment which they have accepted.

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Article 12

1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect three months after the date of receipt of the notification by the Secretary-General.

2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 before the effective date of denunciation.

Article 13

Irrespective of the notifications made under article 8, paragraph 5, of the present Protocol, the Secretary-General of the United Nations shall inform all States referred to in article 48, paragraph I, of the Covenant of the following particulars:

(a) Signatures, ratifications and accessions under article 8;

(b) The date of the entry into force of the present Protocol under article 9 and the date of the entry into force of any amendments under article 11;

Article 14

1. The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 48 of the Covenant.

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Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, G.A. res. 44/128, annex, 44 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/44/49 (1989), entered into force July 11, 1991.

The States Parties to the present Protocol,

Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights,

Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966,

Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable,

Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life,

Desirous to undertake hereby an international commitment to abolish the death penalty,

Have agreed as follows:

Article 1

1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.

2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.

Article 2

1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.

Appendix C: Second Optional Protocol to the International Covenant on Civil and Political Rights

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Appendix C: Second Optional Protocol to the International Covenant on Civil and Political Rights

2. The State Party making such a reservation shall at the time of ratification or accession communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime.

3. The State Party having made such a reservation shall notify the Secretary-General of the United Nations of any beginning or ending of a state of war applicable to its territory.

Article 3

The States Parties to the present Protocol shall include in the reports they submit to the Human Rights Committee, in accordance with article 40 of the Covenant, information on the measures that they have adopted to give effect to the present Protocol.

Article 4

With respect to the States Parties to the Covenant that have made a declaration under article 41, the competence of the Human Rights Committee to receive and consider communications when a State Party claims that another State Party is not fulfilling its obligations shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession. 

Article 5

With respect to the States Parties to the first Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.

Article 6

1. The provisions of the present Protocol shall apply as additional provisions to the Covenant.

2. Without prejudice to the possibility of a reservation under article 2 of the present Protocol, the right guaranteed in article 1, paragraph 1, of the present Protocol shall not be subject to any derogation under article 4 of the Covenant.

Article 7

1. The present Protocol is open for signature by any State that has signed the Covenant.

2. The present Protocol is subject to ratification by any State that has ratified the Covenant or acceded to it. Instruments of

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ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified the Covenant or acceded to it.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 8

1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.

2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

Article 9

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 10

The Secretary-General of the United Nations shall inform all States referred to in article 48, paragraph 1, of the Covenant of the following particulars:

(a) Reservations, communications and notifications under article 2 of the present Protocol;

(b) Statements made under articles 4 or 5 of the present Protocol;

(d) The date of the entry into force of the present Protocol under article 8 thereof.

Article 11

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 48 of the Covenant.

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Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, G.A. res. 63/117 (2008).

Preamble

The States Parties to the present Protocol,

Noting that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Recalling that the Universal Declaration of Human Rights and the International Covenants on Human Rights recognize that the ideal of free human beings enjoying freedom from fear and want

can only be achieved if conditions are created whereby everyone may enjoy civil, cultural, economic, political and social rights,

Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms,

Recalling that each State Party to the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the Covenant) undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures,

Considering that, in order further to achieve the purposes of the Covenant and the implementation of its provisions, it would be appropriate to enable the Committee on Economic, Social and Cultural Rights (hereinafter referred to as the Committee) to carry out the functions provided for in the present Protocol,

Have agreed as follows:

Appendix D: Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

245

Article 1

Competence of the Committee to receive and consider communications

1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications as provided for by the provisions of the present Protocol.

2. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.

Article 2

Communications

Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.     

Article 3

Admissibility

1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted. This shall not be the rule where the application of such remedies is unreasonably prolonged.

2. The Committee shall declare a communication inadmissible when:

(a) It is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit;

(b) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date;

(c) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;

(d) It is incompatible with the provisions of the Covenant;

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(e) It is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media;

(f) It is an abuse of the right to submit a communication; or when

(g) It is anonymous or not in writing.

Article 4

Communications not revealing a clear disadvantage

The Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance.

Article 5

Interim measures

1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication.

Article 6

Transmission of the communication

1. Unless the Committee considers a communication inadmissible without reference to the State Party concerned, the Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State Party concerned.

2. Within six months, the receiving State Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State Party.

Article 7

Friendly settlement

1. Committee shall make available its good offices to the parties concerned with a view to reaching a friendly settlement of the matter on the basis of the respect for the obligations set forth in the Covenant.

2. An agreement on a friendly settlement closes consideration of the communication under the present Protocol.

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Article 8

Examination of communications

1. The Committee shall examine communications received under article 2 of the present Protocol in the light of all documentation submitted to it, provided that this documentation is transmitted to the parties concerned.

2. The Committee shall hold closed meetings when examining communications under the present Protocol.

3. When examining a communication under the present Protocol, the Committee may consult, as appropriate, relevant documentation emanating from other United Nations bodies, specialized agencies, funds, programmes and mechanisms, and other international organizations, including from regional human rights systems, and any observations or comments by the State Party concerned.

4. When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with Part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.   

Article 9

Follow-up to the views of the Committee

1. After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned.

2. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

3. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under articles 16 and 17 of the Covenant.

Article 10

Inter-State communications

1. A State Party to the present Protocol may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. Communications

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under this article may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:

(a) If a State Party to the present Protocol considers that another State Party is not fulfilling its obligations under the Covenant, it may, by written communication, bring the matter to the attention of that State Party. The State Party may also inform the Committee of the matter. Within three months after the receipt of the communication the receiving State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;

(b) If the matter is not settled to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;

(c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter. This shall not be the rule where the application of the remedies is unreasonably prolonged;

(d) Subject to the provisions of subparagraph (c) of the present paragraph the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the Covenant;

(e) The Committee shall hold closed meetings when examining communications under the present article;

(f) In any matter referred to it in accordance with subparagraph (b) of the present paragraph, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

(g) The States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;

(h) The Committee shall, with all due expediency after the date of receipt of notice under subparagraph (b) of the present paragraph, submit a report, as follows:

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(i) If a solution within the terms of subparagraph (d) of the present paragraph is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

(ii) If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in its report, set forth the relevant facts concerning the issue between the States Parties concerned. The written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. The Committee may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them.

2. In every matter, the report shall be communicated to the States Parties concerned.

3. A declaration under paragraph 1 of the present article shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by any State Party shall be received under the present article after the notification of withdrawal of the declaration has been received

by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 11

Inquiry procedure

1. A State Party to the present Protocol may at any time declare that it recognizes the competence of the Committee provided for under this article.

2. If the Committee receives reliable information indicating grave or systematic violations by a State Party of any of the economic, social and cultural rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

3. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

4. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.

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5. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.

6. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee.

7. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report provided for in article 15.

8. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General.

Article 12

Follow-up to the inquiry procedure

1. The Committee may invite the State Party concerned to include in its report under articles 16 and 17 of the Covenant details of any measures taken in response to an inquiry conducted under article 11 of the present Protocol.

2. The Committee may, if necessary, after the end of the period of six months referred to in article 11, paragraph 6, invite the

State Party concerned to inform it of the measures taken in response to such an inquiry.

Article 13

Protection measures

A State Party shall take all appropriate measures to ensure that individuals under its jurisdiction are not subjected to any form of ill-treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.

Article 14

International assistance and cooperation

1. The Committee shall transmit, as it may consider appropriate, and with the consent of the State Party concerned, to United Nations specialized agencies, funds and programmes and other competent bodies, its views or recommendations concerning communications and inquiries that indicate a need for technical advice or assistance, along with the State Party’s observations and suggestions, if any, on these views or recommendations.

2. The Committee may also bring to the attention of such bodies, with the consent of the State Party concerned, any matter arising out of communications considered under the present

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Protocol which may assist them in deciding, each within its field of competence, on the advisability of international measures likely to contribute to assisting States Parties in achieving progress in implementation of the rights recognized in the Covenant.

3. A trust fund shall be established in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, with a view to providing expert and technical assistance to States Parties, with the consent of the State Party concerned, for the enhanced implementation of the rights contained in the Covenant, thus contributing to building national capacities in the area of economic, social and cultural rights in the context of the present Protocol.

4. The provisions of this article are without prejudice to the obligations of each State Party to fulfil its obligations under the Covenant.

Article 15

Annual report

The Committee shall include in its annual report a summary of its activities under the present Protocol.   

Article 16

Dissemination and information

Each State Party undertakes to make widely known and to disseminate the Covenant and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, on matters involving that State Party, and to do so in accessible formats for persons with disabilities.

Article 17

Signature, ratification and accession

1. The present Protocol is open for signature by any State that has signed, ratified or acceded to the Covenant.

2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Covenant. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Covenant.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 

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Article 18

Entry into force

1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.

2. For each State ratifying or acceding to the present Protocol, after the deposit of the tenth instrument of ratification or accession, the protocol shall enter into force three months after the date of the deposit of its instrument of ratification or accession.

Article 19

Amendments

1. Any State Party may propose an amendment to the present Protocol and submit it to the Secretary-General of the United Nations. The Secretary-General shall communicate any proposed amendments to States Parties, with a request to be notified whether they favour a meeting of States Parties for the purpose of considering and deciding upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a meeting, the Secretary-General shall convene the meeting under the auspices of the United Nations. Any

amendment adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the Secretary- General to the General Assembly for approval and thereafter to all States Parties for acceptance.

2. An amendment adopted and approved in accordance with paragraph 1 of this article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties which have accepted it.

Article 20

Denunciation

1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect six months after the date of receipt of the notification by the Secretary-General.

2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under articles 2 and 10 or to any

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procedure initiated under article 11 before the effective date of denunciation.

Article 21

Notification by the Secretary-General

The Secretary-General of the United Nations shall notify all States referred to in article 26, paragraph 1 of the Covenant of the following particulars:

(a) Signatures, ratifications and accessions under the present Protocol;

(b) The date of entry into force of the present Protocol and of any amendment under article 19;

Article 22

Official languages

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 26 of the Covenant.

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Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force Oct. 4, 1967.

The Protocol was taken note of with approval by the Economic and Social Council in resolution 1186 (XLI) of 18 November 1966 and was taken note of by the General Assembly in resolution 2198 (XXI) of 16 December 1966. In the same resolution the General Assembly requested the Secretary-General to transmit the text of the Protocol to the Stares mentioned in article 5 thereof, with a view to enabling them to accede to the Protocol

ENTRY INTO FORCE: 4 October 1967, in accordance with article 8

The States Parties to the present Protocol,

Considering that the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (hereinafter referred to as the Convention) covers only those persons who have become refugees as a result of events occurring before I January 1951,

Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,

Considering that it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline I January 1951,

Have agreed as follows:

Article 1 — General provision

1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter defined.

2. For the purpose of the present Protocol, the term "refugee" shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article I of the Convention as if the words "As a result of events occurring before 1 January 1951 and..." and the words "...as a result of such events", in article 1 A (2) were omitted.

Appendix E: Protocol to the Convention on the Status of Refugees

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3. The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to the Convention in accordance with article I B (I) (a) of the Convention, shall, unless extended under article I B (2) thereof, apply also under the present Protocol.

Article 2 — Co-operation of the national authorities with the United Nations

1. The States Parties to the present Protocol undertake to co- operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol.

2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the States Parties to the present Protocol undertake to provide them with the information and statistical data requested, in the appropriate form, concerning:

(a) The condition of refugees;

(b) The implementation of the present Protocol;

Article 3 — Information on national legislation

The States Parties to the present Protocol shall communicate to the Secretary-General of the United Nations the laws and regulations which they may adopt to ensure the application of the present Protocol.

Article 4 — Settlement of disputes

Any dispute between States Parties to the present Protocol which relates to its interpretation or application and which cannot be settled by other means shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.

Article 5 — Accession

The present Protocol shall be open for accession on behalf of all States Parties to the Convention and of any other State Member of the United Nations or member of any of the specialized agencies or to which an invitation to accede may have been addressed by the General Assembly of the United Nations. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.   

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Article 6 — Federal clause

In the case of a Federal or non-unitary State, the following provisions shall apply:

(a) With respect to those articles of the Convention to be applied in accordance with article I, paragraph 1, of the present Protocol that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of States Parties which are not Federal States;

(b) With respect to those articles of the Convention to be applied in accordance with article I, paragraph 1, of the present Protocol that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;

(c) A Federal State Party to the present Protocol shall, at the request of any other State Party hereto transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention to be applied in accordance with article I,

paragraph 1, of the present Protocol, showing the extent to which effect has been given to that provision by legislative or other action.

Article 7 — Reservations and declarations

1. At the time of accession, any State may make reservations in respect of article IV of the present Protocol and in respect of the application in accordance with article I of the present Protocol of any provisions of the Convention other than those contained in articles 1, 3, 4, 16(1) and 33 thereof, provided that in the case of a State Party to the Convention reservations made under this article shall not extend to refugees in respect of whom the Convention applies.

2. Reservations made by States Parties to the Convention in accordance with article 42 thereof shall, unless withdrawn, be applicable in relation to their obligations under the present Protocol.

3. Any State making a reservation in accordance with paragraph I of this article may at any time withdraw such reservation by a communication to that effect addressed to the Secretary- General of the United Nations.

4. Declarations made under article 40, paragraphs I and 2, of the Convention by a State Party thereto which accedes to the present Protocol shall be deemed to apply in respect of the present Protocol, unless upon accession a notification to the

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contrary is addressed by the State Party concerned to the Secretary-General of the United Nations. The provisions of article 40, paragraphs 2 and 3, and of article 44, paragraph 3, of the Convention shall be deemed to apply muratis mutandis to the present Protocol.

Article 8 — Entry into Protocol

1. The present Protocol shall come into force on the day of deposit of the sixth instrument of accession.

2. For each State acceding to the Protocol after the deposit of the sixth instrument of accession, the Protocol shall come into force on the date of deposit by such State of its instrument of accession.

Article 9 — Denunciation

1. Any State Party hereto may denounce this Protocol at any time by a notification addressed to the Secretary-General of the United Nations.

2. Such denunciation shall take effect for the State Party concerned one year from the date on which it is received by the Secretary-General of the United Nations.   

Article 10 — Notifications by the Secretary-General of the United Nations

The Secretary-General of the United Nations shall inform the States referred to in article V above of the date of entry into force, accessions, reservations and withdrawals of reservations to and denunciations of the present Protocol, and of declarations and notifications relating hereto .

Article 11 — Deposit in the archives of the Secretariat of the United Nations

A copy of the present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, signed by the President of the General Assembly and by the Secretary- General of the United Nations, shall be deposited in the archives of the Secretariat of the United Nations. The Secretary-General will transmit certified copies thereof to all States Members of the United Nations and to the other States referred to in article 5 above.

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Asylum Seekers: Individuals who are fleeing their country of origin due to a well-founded fear of persecution.

Categories of Human Rights: Six functional and conceptual classifications of human rights that provide a general framework for any consideration of who has what rights and under what circumstances. Please note that a particular right may fall under more than one category.

Charter: An international agreement that creates an international organization with a narrow or broad mandate and scope of activity.

• Examples: United Nations Charter, Rome Statute (created the International Criminal Court)

Civil and Political Rights: One of the six categories of human rights pertaining to the relationship between an individual and their government.

• Examples: voting, freedom of speech, right to assembly.

Collective Rights: One of the six categories of human rights pertaining to those rights that attach to a community as a whole — not individuals who happen to be members of that community.

• Examples: self-determination, sovereignty

Convention: Legally binding agreement between two or more states that may be either narrow or broad in scope; it may create international organizations to monitor compliance with the agreement.

• Example: International Convention on the Rights of the Child

Covenant: see Convention

Crimes Against Humanity: Any of several acts when they are committed as part of a widespread or systemic attack directed against any civilian population, with knowledge of the attack, as defined by the Rome Statute of the International Criminal Court.

Glossary

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Declaration: Non-legally binding general agreement of principles, norms or goals that the members of the international community agree are important to pursue.

• Examples: Universal Declaration of Human Rights, Declaration on the Rights of Indigenous Peoples

Economic, Social and Cultural Rights: One of the six categories of human rights pertaining to those rights that ensure a person’s, group’s, or society’s physical and psychological well-being and dignity.

• Examples: right to work, health care, education, religious practices, language, etc.

Individual Rights: One of the six categories of human rights pertaining to those rights that are granted or attach to a single person because they are a human being.

• Examples: voting, health care, education

Interdependence: The concept that all participants in international/global relations are connected by various political, economic, social, cultural, legal or other mechanisms.

Internally Displaced Persons (IDPs): Individuals who have been forced to flee their residence of choice due to a well-founded fear of persecution but who remain within the territorial boundaries of their country of origin.

Intergovernmental Organization (IGO): An organization comprised of the representatives of more than one government of a state.

• Examples: United Nations (UN), African Union (AU), Organization of American States (OAS), Organization of Petroleum Exporting Countries (OPEC), World Trade Organization (WTO)

International Bill of Rights: A collection of three international agreements that are the foundation of all international human rights law: The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights.

Jus Cogens: Legal term literally meaning “compelling law,” which designates norms of principles that cannot be derogated or set aside by way of a specific agreement.

Nation: A group of people the individual members of which have a shared history, cultural practices, language(s), religious practice(s), etc.

• Examples: the Kurds, Yanomami, Lakota

Nation-state: A society that combines the characteristics of ‘nation’ and ‘state.’

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Nongovernmental Organization (NGO): An organization comprised of private individuals or other NGOs.

• Examples: International Red Cross, Human Rights Watch, Women for Women International, Greenpeace, Médecins sans Frontières (Doctors without Borders)

Non-state Actor: Any one of several participants in global relations that are not states, such as nongovernmental organizations, individuals, or corporations.

Promoting Human Rights: The act of proactively informing (educating) individuals, groups and communities of their human rights and ensuring that the necessary mechanisms are in place for them freely to exercise, and advocate for, those rights.

Protecting Human Rights: The act of ensuring through various mechanisms that human rights violations are prevented and, should they occur, that individuals, groups and communities can obtain justice — redress of grievance.

Protocol: An addendum to a previously agreed upon international covenant, convention, etc.

Recognition: (see state) In addition to meeting the four criteria for statehood, for states to come into existence, they typically need to be recognized by other states. However, the number or status of those states is indeterminate. For example, the people of Western Sahara (a contested territory that is claimed by Morocco)

have declared their independence and been recognized by virtually all other African states and the African Union. However, it is generally not recognized by non-African members of the United Nations or that body as a whole.

Refugee: An individual who has fled their country of origin due to a well-founded fear of persecution and has been granted legal residence within another country.

Relative or Conditional Rights: One of the six categories of human rights pertaining to those rights that may be legitimately – legally, morally and/or ethically – limited by various conditions.

• Potential Examples: voting, speech, religion

Self-determination: The right of a people to decide for themselves their status in the international system. This includes their political, social, cultural, economic, legal, and other institutions, policies, and practices. It is protected under customary, codified, and general principles of international law.

Sovereignty: The concept that each state has the authority to make decisions regarding internal social, political and economic issues. The state also has the authority to engage in relations with any other state or non-state actor that it chooses.

State: (synonymous with ‘country’) A society which has met all four of the following conditions: identifiable geographic territory, population, political structure/system, economic structure/

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system. A fifth criteria, recognition also is necessary (see Recognition).

• Examples: Argentina, Germany, the Vatican, Sierra Leone

Statute: see Charter.

Treaty: see Convention.

Treaty of Versailles: The international agreement signed in 1919 that formally ended WWI the terms of which are often cited as a principal trigger of WWII.

Treaty or Peace of Westphalia: The international agreement signed in 1648 that ended the Thirty Years War in Europe. It established the foundations for the modern state system in international relations.

Two Row Treaty: International agreement between the Haudenosaunee indigenous people of North America and the Dutch in 1613. Similar agreements later would be negotiated with the English, French, and U.S.

Violating Human Rights: The act of denying, abridging, or abrogating the human rights of individuals, groups or communities.

Universal Rights: One of the six categories of human rights pertaining to two distinct but related ideas about the fundamental

characteristic of human rights. First, there may be an identifiable set of rights that attach to individuals, groups or communities that cannot be limited or denied under any circumstances. This is similar to the notion of inalienable rights found in various states’ constitutions. Second, the idea that human rights, as such, are guaranteed to individuals, groups, or communities without enumerating specific rights.

• Potential examples: right to food, water, shelter

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Introduction

1 The authors explicitly acknowledge the limitations of what is a predominantly, but not exclusively, ”western” perspective underlying the analysis herein. Also, the selection of included documents clearly is not exhaustive.

Chapter 1

1 It is curious that no African states were represented on the Commission or drafting committee, despite four of them being founding members of the UN: Egypt, Ethiopia, Liberia, and South Africa. The members of the drafting committee were William Hodgson (Australia), John Humphrey (Canada), Hernán Santa Cruz (Chile), Peng-chun Chang (China), René Cassin (France), Charles Malik (Lebanon), Alexander Bogomolov (Soviet Union), Charles Dukes (United Kingdom) and Eleanor Roosevelt (United States).

2 Little did the members of the Human Rights Commission know that that covenant would actually be two covenants, one addressing civil and political rights (ICCPR) and one addressing economic, social and cultural rights (ICESCR). Also, the timeframe for such a covenant far exceeded the intended two year period. It took an additional eighteen years after the adoption of the UDHR in 1948 before the covenants were adopted by the UNGA and an additional ten years before they came into force.

3 To illustrate these divergences, the representative from Lebanon favored an individualistic understanding of human rights based on the writings of Thomas

Aquinas while the representative from China challenged the author of the first draft, Humphrey from Canada, to study Confucius.

4 For a detailed discussion of the “generations” of human rights, see Burns Weston, “Human Rights: Concept and Content” in Richard P. Claude, Human Rights in the World Community, Philadelphia, PA; University of Pennsylvania Press, pp. 16-26.

5 See James V. Spickard, “The Origins of the Universal Declaration of Human Rights,” 2017, Working Papers. 1.

6 The abstaining states were Saudi Arabia, South Africa, and Eastern Bloc states.

7 As quoted in United Nations, “Universal Declaration of Human Rights – History of the Document,” https://www.un.org/en/sections/universal-declaration/history- document/index.html

8 Among these are the Magna Carta (1215), English Bill of Rights (1689), American Declaration of Independence (1776), French Declaration of the Rights of Man and Citizen (1798). In addition, the Code of Hammurabi from Ancient Babylonia may also be numbered among foundational documents. Beyond this, the core Confucian principle of obligation to others (expounded throughout his teachings) is viewed as a foundational element of human rights from East Asia’s traditions.

9 UDHR, Preamble.

Section 7

Endnotes

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https://www.un.org/en/sections/universal-declaration/history-document/index.html

10 Previous human rights documents include the Geneva Convention of 1864 that regulates the treatment of war wounded and grants them access to medical care as well as assures safety of those who care for them. Various decrees that abolished the slave trade and slavery itself are the result of persistent human rights activism. Several treaties on labor rights also were adopted prior to the UDHR.

11 Glendon, 1170.

12 Roosevelt, quoted in Glendon, 1170.

13 UN Charter, Article 2. https://www.un.org/en/sections/un-charter/chapter-i/ index.html

Chapter 2

1 Examples of this sequencing are the ICCPR and ICESCR (Chapter 3), CERD (Chapter 7), CRC (Chapter 9). Each was preceded by its associated declaration.

2 Interestingly, both allude to the central importance of work or labor as the defining motivation for that action.

3 It is not an overstatement to say that tensions were rapidly rising between the two adversarial ‘camps’. The peak of the Cold War undisputedly was the Cuban Missile Crisis (1962). However, 1950-1954 were the now infamous years of McCarthyism—extreme anti-Communism/Socialism in the U.S. The U.S.S.R. at this time saw the end of Joseph Stalin’s extreme politically oppressive rule (he died in 1953) and the advent of Nikita Khrushchev’s governance and continuation of political oppressions.

4 Such ideological positioning was demonstrably rhetorical in nature. Neither bloc vehemently adhered to their position in practice as exemplified by severe food and healthcare limitations in the East and voting rights and assembly curtailments in the West.

Chapter 3

1 See Chapter 10 on the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) for a fuller discussion of individual and collective rights.

Section II

1 The Hague Conventions of 1899 and 1907 were multilateral treaties to address the laws and customs of war.

2 The post-WWII Nuremberg Charter (1945) and the Rome Statute establishing the International Criminal Court are two of the more notable documents in this regard.

Chapter 4

1 This date places it, chronologically, as the very first international human rights law under the United Nations, just one day before the UDHR was adopted on December 10th of that year.

2 For example, see Doris Pilkington, Rabbit Proof Fence or Ron Douglas, dir., Unseen Tears: The Native American Boarding School Experience.

3 See Adam Jones, Gendercide and Genocide, for a detailed analysis of this topic.

4 The post-WWII Nuremberg Charter (1945) and the Rome Statute establishing the International Criminal Court are two of the more notable documents in this regard.

5 For a discussion of the legal issues surrounding Cambodia, see Hurst Hannum, “International Law and Cambodian Genocide: The Sounds of Silence,” Human Rights Quarterly, 11, no. 1 (1989): 82-138.

Chapter 5

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https://www.un.org/en/sections/un-charter/chapter-i/index.html

1 Such committees are known as treaty bodies because they come into existence through the coming into force of a treaty (or other legally binding international agreements).

Chapter 6

1 See Jack Donnelly, “Relative Universality of Human Rights,” Human Rights Quarterly, 29, No. 2, May 2007, pp. 281-306, The Johns Hopkins University Press, DOI: 10.1353/hrq.2007.0016

2 Under the League of Nations, the Arrangements of 5 July 1922, 31 May 1924, 12 May 1926, 30 June 1928 and 30 July 1935, and the Conventions on the International Status of Refugees of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 and the Agreement of 15 October 1946 each addressed such rights.

3 The study elaborated that prior to the Syrian civil war, child marriage was not very common among Syrians. However, those rates have quadrupled among this refugee population strongly suggesting that the displacement itself, coupled with poverty and instability are underlying causes.

Chapter 7

1 For a discussion of the Christian and Marxist underpinnings of Liberation Theology, see the writings of Gustavo Gutiérrez who first used the term in 1973, Leonardo Boff and Clodovis Boff, and Juan Luis Segundo.

Chapter 8

1 Please note that this acronym also is used for the Committee on the Elimination of all Forms of Discrimination against Women. Herein CEDAW is used for the Convention while the Committee will be referred to as such.

2 See Jack Donnelly, “Relative Universality of Human Rights,” Human Rights Quarterly, 29, No. 2, May 2007, pp. 281-306, The Johns Hopkins University Press, DOI: 10.1353/hrq.2007.0016

3 One illustrative and well-known example of education being permitted but the earned degree not awarded was the case of Minerva Mirabal in the Dominican Republic. In the 1950s Minerva completed law school graduating summa cum laude but then dictator Rafael Trujillo denied her the degree, her honors, and the license to practice law.

Chapter 9

1 Two items need to be noted here. First, the male pronoun was in common use as a gender/sex inclusive pronoun at the time of the Convention on the Rights of the Child being drafted. Second, the language “…before as well as after birth…” was an explicit acknowledgement of the need for prenatal care for women and a linkage to CEDAW, and not, as some might suggest, an advocacy of a pro-life/ anti-abortion position.

2 World Vision has documented cases in Africa and Afghanistan of this occurrence. See Claire Bardell, “A Child Marriage: Betrothed Before Birth,” World Vision, October 11, 2013.

3 “The Constitution of the ILO was drafted in early 1919 by the Labour Commission, chaired by Samuel Gompers, head of the American Federation of Labour (AFL) in the United States. It was composed of representatives from nine countries: Belgium, Cuba, Czechoslovakia, France, Italy, Japan, Poland, the United Kingdom, and the United States. The process resulted in a tripartite organization, the only one of its kind, bringing together representatives of governments, employers, and workers in its executive bodies.” (“History of the ILO,” ILO, 2020, accessed June 22, 2019, https://www.ilo.org/global/about-the- ilo/history/lang--en/index.htm.

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4 This topic, addressed in Chapter 6 on CEDAW, reflects the intersection of international human rights instruments alluded to in the introductory chapter.

5 The number is arrived at by compiling data from state marriage license data and the US Bureau of the Census. There is no single data source for child marriage in the US.

6 The only criteria used by this office is whether or not the marriage is legal in the home country.

7 School children in Soweto, South Africa, engaged in a series of peaceful marches to protest apartheid. On June 16, 1976, they were fired upon by the police with the result of at least 176 deaths and over 1,000 injured.

8 Marching on May 2-5, 1963, like their adult counterparts the children protesting for civil rights in Birmingham, Alabama, were met with arrests, fire hoses, police baton beatings, and police dogs.

9 Begun after the 2018 mass killing of students at Marjory Stoneman Douglas High School in Parkland, Florida, this quickly grew into a nation-wide, anti-gun violence movement.

10 Greta initially skipped school to protest outside the Swedish parliament. Her efforts quickly expanded to a series of strikes by middle and high school students. On May 24, 2019, approximately 2,300 school strikes in 130 countries took place. It was preceded on March 15, 2019 by school strikes in 112 countries.

11 Asylum is the legal status of temporary protection from a country other than one’s place of birth. A refugee is a person who has been granted that temporary protection and is recognized as a legal resident within the host country. An Internally Displaced Person (IDP) is someone who has been forced to relocate within their country of birth or permanent residence. An immigrant is someone who is seeking permanent residence within a country other than their place of birth.

12 Many countries recognize legal forms of child labor such as family farms or small businesses. There remain limits, however, on work hours, conditions, etc.

13 Sendero Luminosa originated as a splinter group from the Communist Party of Peru. It initiated guerrilla warfare in 1980 as a ‘boycott’ of national elections.

14 Alice Lakwena’s efforts to resist the Ugandan government in the early and mid-1980s are acknowledged as the precursor to Joseph Kony’s Lord’s Resistance Army. His first foray beyond his village was in 1987.

15 Then-Senator Jesse Helms, chair of the Senate Committee on Foreign Relations, in June 1995, submitted a resolution to prevent the ratification of the UNCRC. In it, he cited these three arguments as reasons. See Congressional Record, Senate, Vol. 141, No 97, p. 8400-8401, June 14, 1995.

Chapter 10

1 See, among others, Karen Engle’s discussion in “On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights,” European Journal of International Law, Vol. 22, Issue (1), Feb. 1, 2011, pp.141-163.

2 Interestingly, this predates the Treaty of Westphalia (1648) that ended the 30 Years War and is credited with initiating the modern state and resultant state system. This is yet another example of significant historical events being ignored or denied.

3 The ‘CANZUS’ states—Canada, Australia, New Zealand, and the US—and many African and Asian states were the most vocally opposed to recognizing collective rights. In contrast, many Central and South American governments were supportive of indigenous peoples’ collective rights. The opposition stemmed, in part, from a fear of wide-spread and sweeping land claims by indigenous peoples.

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4 The significance of such acknowledgement should not be understated. Until June 6, 2008 Japan did not accept the existence of the Ainu people (Hokkaido, formerly northeastern Honshu and, in Russia on Sakhalin, the Kuril Islands and, formerly, the Kamchatka Peninsula).

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Chapter 1

Danchin, Peter. “The Universal Declaration of Human Rights.” http:// ccnmtl.columbia.edu/projects/mmt/udhr/article_19.html

Glendon, Mary A. 1998. “Knowing the Universal Declaration of Human Rights.” Notre Dame Law Review. V. 73. No. 5. http://nrs.harvard.edu/ urn-3:HUL.InstRepos:12991698

Spickard, James V. 2017 “The Origins of the Universal Declaration of Human Rights.” Working Papers 1. https://inspire.redlands.edu/working/1

UN. Charter of the United Nations. https://www.un.org/en/charter-united-nations/ index.html

UN. The Universal Declaration of Human Rights.https://www.un.org/en/sections/ universal-declaration/history-document/index.html

UN – Dag Hammarskjold Library. Drafting of the Universal Declaration of Human Rights. http://research.un.org/en/undhr

Weston, Burns H. 1989. “Human Rights: Concept and Content” in Richard P. Claude. Human Rights in the World Community. Philadelphia, PA; University of Pennsylvania Press. pp. 16-26.

Chapter 2

Eide, Asbjørn. 1989. “Economic, Social and Cultural Rights as Human Right” in Richard P. Claude. Human Rights in the World Community. Philadelphia, PA; University of Pennsylvania Press. pp. 169-179.

International Justice Resource Center. “UN Human Rights Treaty Bodies.” https:// ijrcenter.org/un-treaty-bodies/

Weston, Burns H. 1989. “Human Rights: Concept and Content” in Richard P. Claude. Human Rights in the World Community. Philadelphia, PA; University of Pennsylvania Press. pp. 16-26.

Chapter 3

Eide, Asbjørn. 1989. “Economic, Social, and Cultural Rights as Human Right” in Richard P. Claude. Human Rights in the World Community. Philadelphia, PA; University of Pennsylvania Press. pp. 169-179.

Maathai, Wangari. 2004. Nobel Lecture. Oslo, Norway.

United Nations, General Assembly. 2000. Millennium Development Declaration. A/RES/55/2

United Nations, General Assembly. 2015. Transforming Our World: The 2030 Agenda for Sustainable Development A/RES/70/1

Chapter 4

Bay, Christian. 1989. “Human Rights on the Periphery: No Room in the Arc for the Yanomami?” in Richard Claude and Burns Weston, eds. Human Rights in the World Community. Philadelphia: University of Pennsylvania Press. Pp. 104-114.

Charter of the International Military Tribunal. August 8, 1945, 82 United Nations Treaty Series.

References

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http://nrs.harvard.edu/urn-3:HUL.InstRepos:12991698

https://inspire.redlands.edu/working/1

https://www.un.org/en/charter-united-nations/index.html

https://www.un.org/en/sections/universal-declaration/history-document/index.html

http://research.un.org/en/undhr

https://ijrcenter.org/un-treaty-bodies/

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/55/2

https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E

Hannum, Hurst. 1989. “International Law and Cambodian Genocide: The Sounds of Silence.” Human Rights Quarterly, 11, no. 1: 82-138.

Jones, Adam. 2004. Gendercide and Genocide. Nashville: Vanderbilt University Press.

Lemkin, Raphael. 1946. “Genocide.” American Scholar, 15, no. 2 (April 1946), 227-230.

Pilkington, Doris Garimara. 1996. Follow the Rabbit Proof Fence. Brisbane: University of Queensland Press.

UN General Assembly. July 17, 1998. Rome Statute of the International Criminal Court. United Nations Treaty Series.

Chapter 5

Bassiouni, M. Cherif. 2000. “Combating Impunity for International Crimes.” University of Colorado Law Review. 71: 409.

Paust, Jordan J. 2008. “The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions.” Valparaiso University Law Review. 43: 1535.

Rouillard, Louis-Phillippe F. 2005. “Misinterpreting the Prohibition of Torture Under International Law: The Office of Legal Counsel Memorandum.” American University International Law Review. 21: 9.

Shirey, Katharine. (2004). “The Duty to Compensate Victims of Torture under Customary International Law.” International Legal Perspectives. 14: 30.

Venters, Homer Drae. 2008. “Who is Jack Bauer?” in The Lancet. London 372.9653 (Nov. 29-Dec. 5): 1924-5.

Chapter 6

Chakraborty, Roshni. 2019. “Child, Not Bride: Child Marriage Among Syrian Refugees.” Harvard International Review. Winter, 2019. https://hir.harvard.edu/ child-not-bride-child-marriage-among-syrian-refugees/

Karasapan, Omer, and Shah, Sajjad. 2019. “Forced displacement and child marriage: A growing Challenge in MENA.” Brookings Institute. Washington, D.C. https://www.brookings.edu/blog/future-development/2019/06/19/forced- displacement-and-child-marriage-a-growing-challenge-in-mena/

McAdam, Jane. 2013. “Australia and Asylum Seekers.” International Journal of Refugee Law. V. 25, Iss. 3. pp. 435-448.

Office of the United Nations High Commissioner for Refugees. 2010. Convention and Protocol Relating to the Status of Refugees. UNHCR Communication and Public Information Service; Geneva. https://www.unhcr.org/3b66c2aa10

UN Population Fund. (2017). “New Study finds child marriage rising among most vulnerable Syrian refugees.” https://www.unfpa.org/news/new-study-finds-child- marriage-rising-among-most-vulnerable-syrian-refugees

Chapter 7

Gutierrez, Gustavo. 1973. A Theology of Liberation. Maryknoll, NY: Orbis.

ILO. 1958. Discrimination (Employment and Occupation) Convention. C111. https://www.ilo.org/dyn/normlex/en/f? p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312256

UNESCO. 1960. Convention against Discrimination in Education. http:// portal.unesco.org/en/ev.php- URL_ID=12949&URL_DO=DO_TOPIC&URL_SECTION=201.html

Chapter 8

269

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https://www.brookings.edu/blog/future-development/2019/06/19/forced-displacement-and-child-marriage-a-growing-challenge-in-mena/

https://www.unhcr.org/3b66c2aa10

https://www.unfpa.org/news/new-study-finds-child-marriage-rising-among-most-vulnerable-syrian-refugees

https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312256

http://portal.unesco.org/en/ev.php-URL_ID=12949&URL_DO=DO_TOPIC&URL_SECTION=201.html

Donnelly, Jack. 2007. “The Relative Universality of Human Rights.” Human Rights Quarterly. 29, No. 2, 281-306.

Ebadi, Shirin. 2006. Iran Awakening: from Prison to Peace Prize, one Woman’s Struggle at the Crossroads of History. Anstey, Leicestershire: F.A. Thorpe.

Eide, Asbjorn. 2006. “Economic, Social and Cultural Rights as Human Rights” in Richard Claude and Burns Weston. eds. Human Rights in the World Community. Philadelphia: University of Pennsylvania Press.

Shiva, Vandana. 2005. Earth Democracy. Cambridge, MA: South End Press.

Zwingel, Susanne. 2016. Translating International Women’s Rights: The CEDAW Convention in Context. Basingstoke: Palgrave Macmillan.

Chapter 9

Bardell, Claire. 2013. “A Child Marriage: Betrothed Before Birth.” World Vision.

Cernadas, Pablo Ceriani. 2009. “Migration Policies and Children Rights.” Division of Policy and Strategy, UNICEF and University of Lanús (UNITAR-IOM). New York.

Kristof, Nicolas. 2017. “11 Years Old, a Mom, and Pushed to Marry her Rapist in Florida.” The New York Times. May 26, 2017.

Reiss. Fraidy. 2021. “Child Marriage in the United States: Prevalence and Implications.” Journal of Adolescent Health. V. 69, Iss. 6 supplement. Dec. 1, 2021.

Unchained at Last. 2021. United States’ Child Marriage Problem. April 2021.

You, Danzhen and David Anthony. 2012. Generation 2025 and Beyond. Occasional Paper No. 1, November 2012. Division of Policy and Strategy, UNICEF. New York.

Chapter 10

Engle, Karen. 2011. “On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights,” European Journal of International Law, Vol. 22, Issue (1), Feb. 1, 2011, pp.141-163.

Lâm, Maivân Clech. 2006. “Indigenous Peoples’ Rights to Self-Determination and Territoriality” in Richard Claude and Burns Weston, eds. Human Rights in the World Community. (Philadelphia: University of Pennsylvania).

Parker, Bernard. 1991-1996. Snipe Clan Haudeanesua, Tonawanda Seneca. Personal interviews. Tonawanda Seneca Territory.

Toensing, Gale Courey. 2007. “Declaration adoption marks the end of the first step” in Indian Country Today. September 21, 2007

UNPFII. 2016. “Historical Overview.” https://www.un.org/development/desa/ indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples/historical- overview.html

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Cover

Title art: https://upload.wikimedia.org/wikipedia/commons/b/bc/ Colorful_handprints_on_a_tablecloth.jpg

About the Author

Marchéta Wright: https://www.lynn.edu/campus-directory/people/marcheta- wright

Acknowledgements

Lynn University: https://www.lynn.edu/admission

Introduction

Introduction lettering: https://www.pexels.com/photo/blue-background- intro-1888003/

Section I

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Section II

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Section III

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Recurring widgets

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International Bill of Human Rights timeline

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Section 9

Image credits

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Core International Human Rights Instruments timeline

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Image 6: https://en.wikipedia.org/wiki/International_Criminal_Court#/media/ File:International_Criminal_Court_logo.svg

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Chapter 1

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Eleanor Roosevelt and Human Rights Declaration: https:// commons.wikimedia.org/wiki/ File:Eleanor_Roosevelt_and_Human_Rights_Declaration.jpg

Chapter 2

Title page: https://www.pexels.com/photo/crowd-of-people-black-and-white- photo-2246258/

ICCPR: https://www.flickr.com/photos/mainakiai/24913520335

Chapter 3

Title page: https://www.pexels.com/photo/woman-sitting-near-fishes-and- basins-1304154/

ICESCR map: https://commons.wikimedia.org/wiki/File:ICESCR_members.svg

Chapter 4

Title page: https://pixabay.com/photos/auschwitz-birkenau-war- holocaust-2559070/

Genocide image gallery

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Image 5: https://upload.wikimedia.org/wikipedia/commons/a/a9/ Tatuerat_f%C3%A5ngnummer.jpg

Image 6: https://www.flickr.com/photos/jlascar/9304668943

Image 7: https://upload.wikimedia.org/wikipedia/commons/thumb/7/7f/ RPF_advance_Rwandan_Genocide_1994.jpg/784px- RPF_advance_Rwandan_Genocide_1994.jpg

Image 8: https://www.flickr.com/photos/nostri-imago/5000122164

Image 9: https://en.wikipedia.org/wiki/File:Nyamata_Memorial_Site_13.jpg

Raphael Lemkin: https://commons.wikimedia.org/wiki/File:Lemkin.jpg

Concentration camp chart: https://commons.wikimedia.org/wiki/ File:Kennzeichen_f%C3%BCr_Schutzh%C3%A4ftlinge_in_den_Konzentrationslag ern.jpg

Barracks at Flossenbürg concentration camp: https://commons.wikimedia.org/ wiki/File:Barracks_at_Flossenb%C3%BCrg_concentration_camp.jpg

Auschwitz: https://pixabay.com/photos/auschwitz-museum-poland- camp-4715252/

Holocaust memorial pillars: https://pixabay.com/photos/germany-berlin- architecture-2361626/

Chapter 5

Title page: https://www.pexels.com/photo/hands-in-front-of-white-and-black- background-3541916/

Torture hands: https://pixabay.com/vectors/human-rights-hands-arms- fingers-2099066/

ICERD map: https://commons.wikimedia.org/wiki/File:ICERD-members.PNG

ICERD signing: https://legal.un.org/avl/images/ha/cerd/06-l.jpg

Chapter 6

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Refugees welcome: https://commons.wikimedia.org/wiki/ File:Map5.1Discrepant_Behavior_compressed.jpg

Chapter 7

Title page: https://pixabay.com/photos/rope-bondage-model-hands- woman-2322774/

Pew Research Center views of the use of torture: https://www.pewresearch.org/ fact-tank/2017/01/26/americans-divided-in-views-of-use-of-torture-in-u-s-anti- terror-efforts/

Chapter 8

Title page: https://www.pexels.com/photo/women-s-brown-hijab-1819769/

Image 1: https://pixabay.com/illustrations/fence-sign-refugees-welcome- greet-978138/

U.S. Women’s Rights timeline

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Image 9: http://maxpixel.freegreatpicture.com/Pregnancy-Pregnant-Photos- Mother-Pregnant-Woman-2404020

Image 10: https://www.army.mil/e2/c/images/2013/02/07/281246/original.jpg

CEDAW map: https://commons.wikimedia.org/wiki/ File:Map5.1Discrepant_Behavior_compressed.jpg

Malala Yousafzai: https://commons.wikimedia.org/wiki/ File:Malala_Yousafzai_at_Girl_Summit_2014-cropped.jpg

Pew Research Center gender equality map: http://www.pewresearch.org/fact- tank/2017/01/19/many-around-the-world-say-womens-equality-is-very-important/

Chapter 9

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LURD child fighter: https://en.m.wikipedia.org/wiki/File:LURD_child_fighter.jpg

CRC map: https://commons.wikimedia.org/wiki/ File:Convention_on_the_Rights_of_the_Child.svg

Chapter 10

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Regional Human Rights Instruments timeline

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