Human Rights Notes

HUMAN RIGHTS NOTES

Pestao v. The PhilippinesThe case before the UN Human Rights Committee against the Philippine Government for violation of the International Covenant on Civil and Political Rights

In January 11, 2012, the new Ombudsman (former Supreme Court justice) Conchita Carpio-Morales filed murder charges against 10 officials and officers of the Philippine Navy in connection with the death of [Phillip] Pestao. Morales [reversed] the earlier dismissal of [her predecessor] saying there is sufficient evidence to filecharges against Captain Ricardo Ordoez, Cdr. Reynaldo Lopez, HM2 Welmenio Aquino, LCdr. Luidegar Casis, LCdr. Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito Colico, LCdr. Ruben Roque, Petty Officer 1st Class Carlito Amoroso, and Petty Officer 2nd Class Mil Leonor Igcasan.

In honor of Phillip Pestaos courage and his parents determination, we revisit the findingsby the UN Human Rights Committee (UNHRC) in 2010 upon a complaint filed in April 24, 2007 by Phillips parents, Spouses Felipe and Evelyn Pestao, against the Philippine government, in relation to their Phillips alleged murder on September 27, 1995.The complaint filed by Spouses Pestao was for violation by the Philippines of their sons rights under article 6[2], article 2, paragraph 3[3], article 9, paragraph 1[4], and article 17, paragraph 1[5]of the International Covenant on Civil and Political Rights [ICCPR].

The facts as presented by Spouses Pestao before the UNHRCPhillip Pestao was an Officer of the Philippine Navy serving as cargo officer of the ship BRP Bacolod City during its Mindanao voyage in September 1995. On or about 25 September 1995, the ships Commander permitted the loading of more than 14,000 board feet of logs onto the BRP Bacolod City, without proper papers or authorization. Phillip vehemently objected to the loading of such unauthorized cargoes.

On 26 September 1995, the Phillips parents received an anonymous phone call, warning them that their sons life was in danger. On the same day, they collected their son from the Navy Station at Sangley Point, Cavite City, about 100 kilometers from Manila, and took him to their house in Loyola Heights, Quezon City.That night, Phillip disclosed to his father that the BRP Bacolod City ship was dirty, and that the illegal cargo included 20 sacks of shabu (formed from Methamphetamine), worth approximately 1 billion pesos in the black market. The father tried to dissuade his son from pursuing the case, as he was concerned that any action taken by his son may jeopardize his own business, as the Philippine Navys biggest ship repair contractor. But Phillip was determined to take the matter forward.On 27 September 1995, at about 4:00 am, Phillip left the family home and proceeded to board the BRP Bacolod City. At about 11:00 am on the same day, his parents received a call from the Philippine Navy, asking them to proceed to the Navy Headquarters in Manila, because their son Phillip had an accident.When his parents reached the Navy Headquarters, they were prevented from entering their sons suite, where he lay dead.Instead, they were immediately asked to sign an authorization for an autopsy to be conducted on their sons body, to which they consented after having viewed their sons body. The Navy thereafter exhibited an alleged suicide weapon and an alleged suicide note, in support of their position that Phillip had committed suicide.

Significantly, on 30 September 1995, Phillip was buried in the National Cemetery for military personnel and given full military honors, despite a Navy policy stating that suicide victims should not benefit from such treatment.

After conducting their own investigations, the Criminal Investigation Division of the Philippine National Police and the National Bureau of Investigation of the Department of Justice corroborated the Navys position, concluding that Phillip had committed suicide.

Also notable is the fact that in the course of the same month, after conducting its own inquiry, and despite the official Navy and police conclusions, Phillips insurance company paid the full amount of his coverage to his beneficiaries for his death.Apparently, the insurance company believed Phillip did not commit suicide.

In October 1995, the radio operator of the BRP Bacolod City during its Mindanao voyage, andclose friend of Phillip, drowned in high seas under highly suspicious circumstances during an alleged mission where all his companions survived. The victims body was never found.

In November 1995, another member of the Navy, who was perceived as Phillips ally, and who was also aboard the BRP Bacolod City in September 1995, mysteriously disappeared after being ordered to report to the Navy Headquarters in Manila. This person is still missing and is believed to be dead.

On 15 November 1995, two Senators filed a Senate Resolution, directing the appropriate Senate Committees to conduct an inquiry into the circumstances surrounding Phillips death.

In December 1995, the State partys Navy Flag Officer in Command, a Vice-Admiral, invited Phillips parents to dinner, and requested that they refrain from pursuing their sons case against the Navy. Two weeks later, the Navy Flag Officer in Command sought to see Spouses Pestao again, and presented Mr. Pestao with his companys contract with the Navy, worth a hundred-million pesos, together with an affidavit of waiver and desistance to pursue his suit against the Navy.The spouses decided that they would not abandon their sons claim.One week after this information was relayed to the Navy Flag Officer in Command, the four Navy ships being repaired by Mr. Pestaos company all mysteriously sank, and his companys offices in the Navy Station in Sangley Point were ransacked and looted.

It is also reported that Mr. Pestaos nephew, the companys property custodian, was shot dead during the same period.On 2 January 1996, Spouses Pestao received a leaked copy of an intelligence report of the Armed Forces, which stated that the BRP Bacolod City carried 1 billion pesos worth ofshabuin 20 sacks of rice during its September 1995 trip. The report also indicated that this shipment had been escorted by a Security Officer of the Navy Flag Officer in Command, and that upon discovering the illegal cargo, Phillip had confronted his superior, and was killed afterwards, to prevent him from revealing the criminal activities taking place on board the ship. This confidential report also identified the chief security officer of the Navy Flag Officer in Command as the most likely perpetrator of the crime.

In January 1996, another member of the Philippine Navy mysteriously died in a military hospital, after a strange and quick deterioration of his condition. This person was suspected of involvement in the shabu operation in the BRP Bacolod City, as well as in the death of Phillip, and had engaged in discreet talks with Spouses Pestao before theirs sons death.He was believed to be ready to reveal important information before he died. The death of this member of the Navy brings to four the number of persons killed in connection with the September 1995 voyage of the BRP Bacolod City. The four killings remain uninvestigated, and unaccounted for.

Spouses Pestao filed complaints against the Commanding Officer and certain crew members of the BRP Bacolod City: (1) in September 1995 with the Philippine Navy; (2) in September 1995 with the Philippine National Police and the National Bureau of Investigation of the Department of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in January 1998 with the Philippine Senate (Committees on Justice-Human Rights and Defense-National Security); (4) in March 2000 with Ombudsman Aniano Desierto; (5) and in October 2005 with a new Ombudsman (Simeon Marcelo), who was replaced thereafter. No action was taken on the case by the new Ombudsman, Merceditas Gutierrez, since she took office in December 2005.

After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December 2005, the Ombudsman found merit in the spouses petition, reopened the case, and requested from the Commanding Officer of the BRP Bacolod City in September 1995, and from eight senior and junior officers and enlisted personnel to submit counter-affidavits as respondents, within ten days.However, only one week after reopening the spouses case, the Ombudsman stepped down, and was replaced.Since then, the case was left uninvestigated in the Office of the Ombudsman for military affairs.

On 25 January 1998, after eight Committee hearings, a visual inspection of Phillips stateroom in the ship, and relying, inter alia, on expert evidence and witness testimonies, two Senate Committees issued a Joint report on the Pestao case, which contained the following findings: (i) Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in one place in the vessel different from the one where his body was found; (iii) after his death, his body was moved and laid on the bed where it was found; (iv) he must have been shot on board the BRP Bacolod City before the vessel reached the Navy Headquarters on 27 September 1995; (v) there was a deliberate attempt to make it appear that Phillip killed himself inside his stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not have accomplished it by himself. The Senate Committees also recommended, inter alia, that an independent investigation be conducted on the circumstances surrounding Phillips murder, so as to bring the perpetrators to justice, and identify the other individuals who participated in the deliberate attempt to portray a suicide.

On 28 March 2000, the Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed the case without prejudice, concluding in its evaluation report that the conduct of further investigation in order to find out the identity of the perpetrator and his accomplices, if any, will only be a waste of time, considering that the physical evidence has already been tampered with, not to mention the lapse of time.

UNHRCs consideration of the merits of the case

Violation of Article 6 of the ICCPRAs regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated referring to the ICCPR as the Covenant -that it:Recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also by private persons or entities. The Committee also refers to its jurisprudence, according to which both a criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 6. A violation of the Covenant may therefore arise as a result of a State partys failure to take appropriate measures to punish, investigate or redress such a violation.

7.2 Despite the initial findings of the [Philippine] National Police and Department of Justice, which both concluded in October 1995 that the victim had committed suicide, it now appears undisputed that the death of [Phillip Pestao] was a violent one, resulting from a homicide. The [Philippine Authorities] submissions of 18 January and 8 May 2008, contending that [Spouses Pestao]s case was an ordinary criminal case, at least concede this fact

The UNHRC took note of the following: 1. Conclusions of the substantial Senate report of 25 January 1998, which established that the victim was shot on board the BRP Bacolod City on 27 September 1995, that there had been a deliberate attempt to make it appear that [he] killed himself, and which recommended that an independent investigation be conducted.2. That an administrative and criminal action filed by [Spouses Pestao] is currently pending against members of the [Philippine]s Navy, i.e. of an organ of the [state].3. [Spouses Pestao]s assertions that two other members of the [Philippine] Navy who were close to the victim, as well as another Navy Ensign who allegedly participated in the illicit boarding of drugs on the BRP Bacolod City, and who had engaged in communications with [Spouses Pestao] about their sons death, all died or disappeared in mysterious circumstances between October 1995 and January 1996.4. [Spouses Pestao]s report of having been threatened by a Vice-Admiral of the [Philippine] Navy to lose their business with the Navy should they persist in their complaint. As they pursued their action, [Spouses Pestao] reportedly lost their business, and their nephew, the companys property custodian, was killed.5. In the absence of rebuttal statements, or any comments from the [Philippine Authorities] on these facts, the Committee gives due weight to the [Spouses Pestao]s contentions, which raise a strong presumption of direct participation of the [Philippine Government] in the violation of their sons right to life.

The UNHRC then considered the following: 1. That the killing of [Spouses Pestao]s son on board a ship of the [Philippine] Navy warranted a speedy, independent investigation on the possible involvement of the Navy in the crime. To simply state that there was no direct participation of the State party in the violation of the victims right to life falls short of fulfilling such positive obligation under the Covenant. While close to fifteen years elapsed since the death of the victim, [Spouses Pestao] are still ignorant of the circumstances surrounding their sons death, and the [Philippine] authorities have yet to initiate an independent investigation. In its submission of 8 May 2008, the [Philippine Authorities] referred to an Order of 10 August 2007 of the Office of the Ombudsman, which deemed it necessary to conduct further proceedings in the case. The Committee is not aware, however, of any preliminary proceedings undertaken by that Office since an action was filed de novo by [Spouses Pestao] in October 2005. Since that date, no suspect was prosecuted, or tried, let alone convicted, and [Spouses Pestao] were not compensated for the tragic loss of their son.2. That the death of [Phillip Pestao] is directly attributable to the [Philippine Authorities].When a person dies in circumstances that might involve a violation of the right to life, the State party is bound to conduct an investigation and ensure that there is no impunity.The [Philippine Authorities] must accordingly be held to be in breach of its obligation, under article 6, read in conjunction with article 2, paragraph 3, to properly investigate the death of [Phillip Pestao], prosecute the perpetrators, and ensure redress.

Violation of Article 2, paragraph 3(a) of the ICCPRThe UNHRC states that Under article 2, paragraph 3(a), of the Covenant, the [Philippines] is under an obligation to provide [Spouses Pestao] with an effective remedy in the form, inter alia, of an impartial, effective and timely investigation into the circumstances of their sons death, prosecution of perpetrators, and adequate compensation. The [Philippines] is also under an obligation to prevent similar violations in the future.

In ending, the UNHRC relayed its wish to receive from the [Philippines], within 180 days, information about the measures taken to give effect to the Committee's Views.

We are unaware if the UNHRCs wish was granted.

Violation of Article 9, paragraph 1 of the ICCPRIn claiming violation of article 9 paragraph 1of the Covenant, the UNHRC stated that [Spouses Pestao] claim that they received an anonymous call, informing them that their sons life was in danger, the day before he was found dead. However, there is no evidence that [Spouses Pestao] reported these threats against their son to [Philippine] authorities, and if so, that the [Philippine Authorities] failed to take appropriate action for this protection. Nor is there any conclusive evidence that the [Philippine Authorities were] involved in threatening [Phillip Pestao]. In the absence of any further arguments put forward by [Spouses Pestao] on this issue, the Committee [considered] that these claims are not sufficiently substantiated for the purposes of admissibility and [therefore] inadmissible ...

Violation of Article 17, paragraph 1 of the ICCPRThe UNHRC ruled similarly regarding the alleged violation of Article 17 paragraph 1 of the Covenant since [Spouses Pestao] claim that the [Philippine Authorities] attempt to make it appear that [Phillip Pestao] committed suicide, is to be construed as an unlawful attack against his honor.[The Committee considered] that this claim [was not] sufficiently substantiated for the purposes of admissibility, and is inadmissible

It is ironic and deeply sad that an international body had to deliberate upon the merits of what is clearly a local criminal affair. Justice delayed is justice denied they say.Nevertheless, the filing of the cases, while long overdue, is still a welcome development.We can only hope that the Philippine Government now stops its stonewalling, cleans its ranks, and help in any ones sincere pursuit of justice.A much cleaner government would have prevented the early and unjustified death of Phillip Pestao.A more just government would now support Felipe and Evelyn Pestao any way they can and prevent the grief of families like theirs in the future.

Obergefell v. Hodges

Facts:Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. The plaintiffs in each case argued that the states statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil Rights Act. In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the states bans on same-sex marriage and refusal to recognize marriages performed in other states did not violate the couples Fourteenth Amendment rights to equal protection and due process.

Issues:(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?

ConclusionDecision:5 votes for Obergefell, 4 vote(s) againstLegal provision:Equal Protection 14th AmendmentYes, yes. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Judicial precedent has held that the right to marry is a fundamental liberty because it is inherent to the concept of individual autonomy, it protects the most intimate association between two people, it safeguards children and families by according legal recognition to building a home and raising children, and it has historically been recognized as the keystone of social order. Because there are no differences between a same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from the right to marry violates the Due Process Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law. Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the fundamental right of same-sex couples to marry. The Court also held that the First Amendment protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.

Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be good and fair policy, the Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether states have to recognize or license such unions. Instead, this issue should be decided by individual state legislatures based on the will of their electorates. The Constitution and judicial precedent clearly protect a right to marry and require states to apply laws regarding marriage equally, but the Court cannot overstep its bounds and engage in judicial policymaking. The precedents regarding the right to marry only strike down unconstitutional limitations on marriage as it has been traditionally defined and government intrusions, and therefore there is no precedential support for making a state alter its definition of marriage. Chief Justice Roberts also argued that the majority opinion relied on an overly expansive reading of the Due Process and Equal Protection Clauses of the Fourteenth Amendment without engaging with the judicial analysis traditionally applied to such claims and while disregarding the proper role of the courts in the democratic process. Justices Antonin Scalia and Clarence Thomas joined in the dissent. In his separate dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Courts authority both by exercising the legislative, rather than judicial, power and by doing so in a realm that the Constitution reserves for the states. Justice Scalia argued that the question of whether same-sex marriage should be recognized is one for the state legislatures, and that for the issue to be decided by unelected judges goes against one of the most basic precepts of the Constitution: that political change should occur through the votes of elected representatives. In taking on this policymaking role, the majority opinion departed from established Fourteenth Amendment jurisprudence to create a right where none exists in the Constitution. Justice Thomas joined in the dissent. Justice Thomas also wrote a separate dissent in which he argued that the majority opinion stretched the doctrine of substantive due process rights found in the Fourteenth Amendment too far and in doing so distorted the democratic process by taking power from the legislature and putting it in the hands of the judiciary. Additionally, the legislative history of the Due Process Clause in both the Fifth and Fourteenth Amendments indicates that they were meant to protect people from physical restraint and from government intervention, but they do not grant them rights to government entitlements. Justice Thomas also argued that the majority opinion impermissibly infringed on religious freedom by legislating from the bench rather than allowing the state legislature to determine how best to address the competing rights and interests at stake. Justice Scalia joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the Constitution does not address the right of same-sex couples to marry, and therefore the issue is reserved to the states to decide whether to depart from the traditional definition of marriage. By allowing a majority of the Court to create a new right, the majority opinion dangerously strayed from the democratic process and greatly expanded the power of the judiciary beyond what the Constitution allows. Justice Scalia and Justice Thomas joined in the dissent.

CHARACTERISTICS OF HUMAN RIGHTS1.Inherent Human Rights are inherent because they are not granted by any person or authority.2.Fundamental Human Rights are fundamental rights because without them, the life and dignity of man will be meaningless.3.Inalienable Human Rights are inalienable because:a. They cannot be rightfully taken away from a free individual.b. They cannot be given away or be forfeited.4.Imprescriptible Human Rights do not prescribe and cannot be lost even if man fails to use or assert them, even by a long passage of time.5.Indivisible Human Rights are not capable of being divided. They cannot be denied even when other rights have already been enjoyed.6.Universal Human Rights are universal in application and they apply irrespective of ones origin, status, or condition or place where one lives. Human rights are enforceable without national border.7.Interdependent Human Rights are interdependent because the fulfillment or exercise of one cannot be had without the realization of the other.

CLASSIFICATION OF HUMAN RIGHTS

1. CLASSIC AND SOCIAL RIGHTSOne classification used is the division between classic and social rights. Classic rights are often seen to require the non-intervention of the state (negative obligation), and social rights as requiring active intervention on the part of the state (positive obligations). In other words, classic rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to achieve a given result (obligation of result) and social rights in terms of a duty to provide the means (obligations of conduct). The evolution of international law, however, has led to this distinction between classic and social rights becoming increasingly awkward. Classic rights such as civil and political rights often require considerable investment by the state. The state does not merely have the obligation to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial, for instance, requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative support. Another example is the organization of elections, which also entails high costs.

On the other hand, most social rights contain elements that require the state to abstain from interfering with the individuals exercise of the right. As several commentators note, the right to food includes the right for everyone to procure their own food supply without interference; the right to housing implies the right not to be a victim of forced eviction; the right to work encompasses the individuals right to choose his/her own work and also requires the state not to hinder a person from working and to abstain from measures that would increase unemployment; the right to education implies the freedom to establish and direct educational establishments; and the right to the highest attainable standard of health implies the obligation not to interfere with the provision of health care.

In sum, the differentiation of classic rights from social rights does not reflect the nature of the obligations under each set of rights.2. CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTSCivil rightsThe term civil rights is often used with reference to the rights set out in the first eighteen articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a further set of physical integrity rights has been identified, which concern the right to life, liberty and security of the person, and which offer protection from physical violence against the person, torture and inhuman treatment, arbitrary arrest, detention, exile, slavery and servitude, interference with ones privacy and right of ownership, restriction of ones freedom of movement, and the freedom of thought, conscience and religion. The difference between basic rights (see below) and physical integrity rights lies in the fact that the former include economic and social rights, but do not include rights such as protection of privacy and ownership.

Although not strictly an integrity right, the right to equal treatment and protection in law certainly qualifies as a civil right. Moreover, this right plays an essential role in the realization of economic, social and cultural rights.

Another group of civil rights is referred to under the collective term due process rights. These pertain, among other things, to the right to a public hearing by an independent and impartial tribunal, the presumption of innocence, thene bis in idemprinciple (freedom from double jeopardy) and legal assistance (see,e.g., Articles 9, 10, 14 and 15 ICCPR).

Political rightsIn general, political rights are those set out in Articles 19 to 21 UDHR and also codified in the ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of ones country and the right to vote and stand for election at genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 ICCPR).

Economic and social rightsThe economic and social rights are listed in Articles 22 to 26 UDHR, and further developed and set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education (see Articles 6 to 14 ICESCR).

Cultural rightsThe UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (see also Article 15 ICESCR and Article 27 ICCPR).The alleged dichotomy between civil and politicalrights,andeconomic, socialandcultural rightsTraditionally it has been argued that there are fundamental differences between economic, social and cultural rights, and civil and political rights. These two categories of rights have been seen as two different concepts and their differences have been characterized as a dichotomy. According to this view, civil and political rights are considered to be expressed in very precise language, imposing merely negative obligations which do not require resources for their implementation, and which therefore can be applied immediately. On the other hand, economic, social and cultural rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore involving a progressive realization.

As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar bodies, while economic, social and cultural rights are by their nature non-justiciable.

Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly stressed. During the last decade, we have witnessed the development of a large and growing body of case law of domestic courts concerning economic, social and cultural rights. This case law, at the national and international level, suggests a potential role for creative and sensitive decisions of judicial and quasi-judicial bodies with respect to these rights.

Many international fora have elaborated on the indivisibility and interdependency of human rights. As stated in the 1993 Vienna Declaration and Program of Action: All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. The European Union (EU) and its member states have also made it clear on numerous occasions that they subscribe to the view that both categories of human rights are of equal importance, in the sense that an existence worthy of human dignity is only possible if both civil and political rights and economic, social and cultural rights are enjoyed. In their Declaration of 21 July 1986, they affirmed that the promotion of economic, social and cultural rights as well as of civil and political rights is of paramount importance for the full realization of human dignity and for the attainment of the legitimate aspirations of every individual.

The so-called Limburg Principles on the Implementation of the ICESCR also indicate that a sharp distinction between civil and political rights on the one hand and economic, social and cultural rights on the other is not accurate. These principles were drawn up in 1986 by a group of independent experts, and followed in 1997 by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Together, these documents provide a clear explanation of the nature of the state party obligations under the ICESCR. The same can be said of the 1990 General Comment 3 of the UN Committee on Economic, Social and Cultural Rights on the nature of states parties obligations in relation to the ICESCR.

Fortunately, continuous declarations at the international level on the indivisibility and interdependency of all rights have finally been codified by way of the recently adopted Optional Protocol to the ICESCR. States parties to the Optional Protocol will recognize the competence of the Committee on Economic, Social and Cultural Rights to receive and consider individual and collective complaints alleging violations of economic, social and cultural rights set forth in the ICESCR. The Committee will also be empowered to request interim measures to avoid possible irreparable damage to the victims of the alleged violations and, where it receives reliable information indicating grave or systematic violations, it shall conduct an inquiry which may include a visit to the state party.

The adoption of the Optional Protocol on the 60th anniversary of the UDHR, on 10 December 2008, represents an historic advance for human rights. Firstly, economic, social and cultural rights - historically demoted to an inferior status with limited protection - are now finally on an equal footing with civil and political rights. Secondly, through an individual complaints procedure the meaning and scope of these rights will become more precise, facilitating efforts to respect and guarantee their enjoyment. Thirdly, the existence of a potential remedy at the international level will provide an incentive to individuals and groups to formulate some of their economic and social claims in terms of rights. Finally, the possibility of an adverse finding of the Committee on Economic, Social and Cultural Rights will give economic, social and cultural rights salience in terms of the political concerns of governments; which these rights largely lack at present.3. FUNDAMENTAL AND BASIC RIGHTSFundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring already recognized rights and matters of policy which affect human development into the sphere of human rights. Concern that a broad definition of human rights may lead to the notion of violation of human rights losing some of its significance has generated a need to distinguish a separate group within the broad category of human rights. Increasingly, the terms elementary, essential, core and fundamental human rights are being used.

Another approach is to distinguish a number of basic rights, which should be given absolute priority in national and international policy. These include all the rights which concern peoples primary material and non-material needs. If these are not provided, no human being can lead a dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity. They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and other essentials crucial to physical and mental health.

Mention should also be made of so-called participation rights; for instance, the right to participate in public life through elections (which is also a political right; see above) or to take part in cultural life. These participation rights are generally considered to belong to the category of fundamental rights, being essential preconditions for the protection of all kinds of basic human rights.4. OTHER CLASSIFICATIONSFreedomsPreconditions for a dignified human existence have often been described in terms of freedoms (e.g., freedom of movement, freedom from torture and freedom from arbitrary arrest). United States President Franklin D. Roosevelt summarized these preconditions in his famous Four Freedoms Speech to the United States Congress on 26 January 1941: Freedom of speech and expression; Freedom of belief (the right of every person to worship God in his own way); Freedom from want (economic understandings which will secure to every nation ahealthy peace-time life for its inhabitants); and Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion that no nation would be able to commit an act of physical aggression against any neighbor).

Roosevelt implied that a dignified human existence requires not only protection from oppression and arbitrariness, but also access to the primary necessities of life.

Civil libertiesThe concept of civil liberties is commonly known, particularly in the United States, where the American Civil Liberties Union (a non-governmental organization) has been active since the 1920s. Civil liberties refer primarily to those human rights which are laid down in the United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection against interference with ones privacy, protection against torture, the right to a fair trial, and the rights of workers. This classification does not correspond to the distinction between civil and political rights.

Individual and collective rightsAlthough the fundamental purpose of human rights is the protection and development of the individual (individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to membership of a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. One must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with others, and the rights of a collective.

The most notable example of a collective human right is the right to self-determination, which is regarded as being vested in peoples rather than in individuals (see Articles 1 ICCPR and ICESCR). The recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a necessary precondition for the development of the individual. It is generally accepted that collective rights may not infringe on universally accepted individual rights, such as the right to life and freedom from torture.

First, second and third generation rightsThe division of human rights into three generations was first proposed by Karel Vasak at the International Institute of Human Rights in Strasbourg. His division follows the principles of Libert, galit and Fraternit of the French Revolution.

First generation rights are related to liberty and refer fundamentally to civil and political rights. The second generation rights are related to equality, including economic, social and cultural rights. Third generation or solidarity rights cover group and collective rights, which include,inter alia, the right to development, the right to peace and the right to a clean environment. The only third generation right which so far has been given an official human rights status - apart from the right to self-determination, which is of longer standing - is the right to development (see the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration and Program of Action (Paragraph I, 10)). The Vienna Declaration confirms the right to development as a collective as well as an individual right, individuals being regarded as the primary subjects of development. Recently, the right to development has been given considerable attention in the activities of the High Commissioner for Human Rights. Adoption of a set of criteria for the periodic evaluation of global development partnerships from the perspective of the right to development by the Working Group on the Right to Development, in January, 2006, evidence the concrete steps being taken in this area. The EU and its member states also explicitly accept the right to development as part of the human rights concept.

While the classification of rights into generations has the virtue of incorporating communal and collective rights, thereby overcoming the individualist moral theory in which human rights are grounded, it has been criticized for not being historically accurate and for establishing a sharp distinction between all human rights. Indeed, the concept of generations of rights is at odds with the Teheran Proclamation and the Vienna Declaration and Program of Action, which establish that all rights are indivisible, interdependent and interrelated.

HISTORY OF THE UNITED NATIONSThe name "United Nations", coined by United States President Franklin D. Roosevelt was first used in the Declaration by United Nationsof 1 January 1942, during the Second World War, whenrepresentatives of 26 nationspledged their Governments to continue fighting together against the Axis Powers.

States first established international organizations to cooperate on specific matters. TheInternational Telecommunication Unionwas founded in 1865 as the International Telegraph Union, and theUniversal Postal Unionwas established in 1874. Both are now United Nationsspecialized agencies.

In 1899, the International Peace Conference was held in The Hague to elaborate instruments for settling crises peacefully, preventing wars and codifying rules of warfare. It adopted the Convention for the Pacific Settlement of International Disputes and established thePermanent Court of Arbitration, which began work in 1902.

The forerunner of the United Nations was theLeague of Nations, an organization conceived in similar circumstances during the First World War, and established in 1919 under the Treaty of Versailles "to promote international cooperation and to achieve peace and security." TheInternational Labor Organizationwas also created under the Treaty of Versailles as an affiliated agency of the League. The League of Nations ceased its activities after failing to prevent the Second World War.

In 1945, representatives of 50 countries met in San Francisco at theUnited Nations Conference on International Organizationto draw up theUnited Nations Charter. Those delegates deliberated on the basis of proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and the United States at Dumbarton Oaks, United States in August-October 1944. The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States.

The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States, and by a majority of other signatories.United Nations Dayis celebrated on 24 October each year.

HISTORY OF THE UNITED NATIONS CHARTERTheUnited Nations Charteris the treaty that established the United Nations.The following series of events led to the writing of the Charter, and the UN's founding.

12 June 1941-The Declaration of St. James's PalaceIn June 1941, London was the home of nine exiled governments. The great British capital had already seen twenty-two months of war and in the bomb-marked city, air-raid sirens wailed all too frequently. Practically all Europe had fallen to the Axis and ships on the Atlantic, carrying vital supplies, sank with grim regularity. But in London itself and among the Allied governments and peoples, faith in ultimate victory remained unshaken. And, even more, people were looking beyond military victory to the postwar future.

14 August 1941-The Atlantic CharterTwo months after the London Declaration came the next step to a world organization, the result of a dramatic meeting between President Roosevelt and Prime Minister Churchill.

1 January 1942-The Declaration of the United NationsRepresentatives of 26 countries fighting the Rome-Berlin-Tokyo Axis, decide to support the by Signing the Declaration of the United Nations.

1943-Moscow and Teheran ConferenceThus by 1943 all the principal Allied nations were committed to outright victory and, thereafter, to an attempt to create a world in which men in all lands may live out their lives in freedom from fear and want. But the basis for a world organization had yet to be defined, and such a definition came at the meeting of the Foreign Ministers of Great Britain, the United States and the Soviet Union in October 1943.

1944-1945-Dumbarton Oaks and YaltaThe principles of the world organization-to-be were thus laid down. But it is a long step from defining the principles and purpose of such a body to setting up the structure. A blueprint had to be prepared, and it had to be accepted by many nations.

1945-San Francisco ConferenceForty-five nations, including the four sponsors, were originally invited to the San Francisco Conference: nations which had declared war on Germany and Japan and had subscribed to theUnited Nations Declaration.

THE HISTORY OF THE UNITED NATIONS DECLARATION OF HUMAN RIGHTSThe United Nations Charter, specifically Article 68, requires the United Nations Economic and Social Council to set up a commission that focuses on human rights and economic and social fields.

Article 68 of the United Nations Charter:The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.

The outcome of which was the establishment of the United Nations commission on human rights. The commission on human rights was composed of 8 members and was chaired by Mrs. Eleanor Roosevelt, the widow of the late us president franklin d. Roosevelt one of the key persons responsible for the establishment of the United Nations. The said commission was tasked for the drafting of the international bill of human rights. The central core of the bill was the universal respect for human rights and fundamental freedoms, which includes the classical, cultural, economic, social, political and other rights.

After the drafting by the Commission, it was revised in light of the replies of some member states of the United Nations. Afterwards, it was submitted to the United Nations General Assembly. The United Nations General Assembly, is one of the principal organs and the policy making representative forum of the United Nations.

The General Assembly, in turn, scrutinized the document, with the 58 Member States voting a total of 1,400 times on practically every word and every clause of the text. There were many debates. Some Islamic States objected to the articles on equal marriage rights and on the right to change religious belief, for example, while several Western countries criticized the inclusion of economic, social and cultural rights. On 10 December 1948, the United Nations General Assembly unanimously adopted the Universal Declaration of Human Rights, with 8 abstentions. Since then, 10 December is celebrated every year worldwide as Human Rights Day. The adoption of the Declaration was immediately hailed as a triumph, uniting very diverse and even conflicting political regimes, religious systems and cultural traditions.

THE UNITED NATIONS DECLARATION OF HUMAN RIGHTSPolitical rightsIn general, political rights are those set out in Articles 19 to 21 UDHR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of ones country and the right to vote and stand for election at genuine periodic elections held by secret ballot.

Economic and social rightsThe economic and social rights are listed in Articles 22 to 26 UDHR. These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education.

Cultural rightsThe UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author.

Article 291. Everyone has duties to the community in which alone the free and full development of his personality is possible.2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

In article 29, the Universal Declaration of Human Rights reminds us that rights carry responsibilities. It reminds us that everyone has duties to the community.

A half century ago, the Declaration's drafters could not have imagined the world as we know it; a world where substances released on one continent contribute to health problems on another; a world where the destruction of forests or industrial emissions of greenhouse gases in one part of the globe have the power to affect the global climate.

Today, we are more aware than ever that we live in a global village; that community now extends beyond towns, beyond regions and beyond countries. Our duty to the community is nothing short of our duty to care for the environment from pole to pole.

We are beginning to understand the urgent need to care for our global commons: to protect the ozone layer, to rid roads and fields of the scourge of landmines, to curb climate change, to care for our forests and the bounty of the seas. The Montreal Protocol on ozone-depleting substances and the International Convention on Landmines are fine examples of what can be achieved when human rights and human health are respected.

Today, Article 29 is a very valid reminder that the dignity and rights of all members of the human family can be preserved if we accept our duty to the global community. By accepting that duty, we will avoid the tragedy of the commons.

Article 30Nothing in the Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Article 30 serves much the same function as the Constitution of Canada which makes explicit the principle that one part of the Constitution cannot be used to invalidate or repeal another. Examining the Universal Declaration of Human Rights in a structural sense, it is clear that the inclusion of Article 30 serves a critical function, in that it precludes the possibility of using the provisions of one article to trump the intended function and provisions of another.

For example, article 18 articulates the universal right to freedom of religious observance, accompanied by the right to manifest that religion or belief in teaching, practice, worship and observance. Article 16(3) articulates the importance of the family as the natural and fundamental group unit of society which is entitled to protection by society and the State. In light of article 30 then, it follows that, for example, a devoutly religious family cannot justify the involuntary "marrying off" of a child, thus trumping Article 16(2), which spells out that marriage shall be entered into only with the free and full consent of the individual, the act of marrying that child would stand in direct contravention of the Declaration.

This is not a hollow example. In many countries and societies around the world, children are subjected to family duress and forced into marriage according to their families' religious convictions.

The fundamental point of Article 30 is to avoid the fallacious interpretation of any of the provisions of the Universal Declaration of Human Rights.

International Covenant on Civil and Political RightsThe Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.

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

Part 2(Articles 2 5) obliges parties to legislate where necessary to give effect to the rights recognized in the Covenant, and to provide an effectivelegal remedyfor any violation of those rights. It also requires the rights be recognized "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,and to ensure that they are enjoyed equally by women.The rights can only be limited "in time ofpublic emergencywhich threatens the life of the nation,and even then no derogation is permitted from the rights to life, freedom fromtortureandslavery, the freedom fromretrospective law, the right to personhood, andfreedom of thought,conscienceandreligion.

Part 3(Articles 6 27) lists the rights themselves. These include rights to: physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8); liberty and security of the person, in the form of freedom fromarbitrary arrest and detentionand the right tohabeas corpus(Articles 9 11); procedural fairness in law, in the form of rights to due process, afair and impartial trial, thepresumption of innocence, and recognition as a person before the law (Articles 14, 15, and 16); individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right toprivacy(Articles 12, 13, 17 24); prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutesincitementto discrimination, hostility or violence by law (Article 20); political participation, including the right to theright to vote(Article 25); Non-discrimination,minority rightsandequality before the law(Articles 26 and 27).

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

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

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

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

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

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

Article 7prohibitstortureandcruel, inhuman or degrading punishment. As with Article 6, it cannot be derogated from under any circumstances.The article is now interpreted to impose similar obligations to those required by theUnited Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition onrefoulement.In response toNazi human experimentationduring WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent. Article 8prohibitsslaveryand enforced servitude in all situations. The article also prohibitsforced labor, with exceptions for criminal punishment, military service and civil obligations.

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

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

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

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

The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect therights of the accusedand theright to a fair trial. It establishes thePresumption of innocence and forbidsdouble jeopardy.It requires that those convicted of a crime be allowed to appeal to a higher tribunal, and requires victims of aMiscarriage of justiceto be compensated. It establishes rights to aspeedy trial, tocounsel, againstself-incrimination, and for the accused to be present andcall and examine witnesses.

Article 15prohibits prosecutions underEx post facto lawand the imposition ofretrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction. But except the criminal according togeneral principles of lawrecognized by international community. (jus cogens)

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

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

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

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

Article 18mandates freedom of religion.

Article 19mandates freedom of expression.

Article 20mandates sanctions against inciting hatred.

Articles 21and22mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and also defines theInternational Labor Organization.

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

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

Article 27mandates the rights ofethnic,religiousandlinguistic minorityto enjoy their own culture, to profess their own religion, andto use their own language.

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

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

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

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

International Covenant on Economic, Social and Cultural RightsCore provisionsPrinciple of progressive realization:Article 2of the Covenant imposes a duty on all parties to take steps... 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.

This is known as the principle of "progressive realization". It acknowledges that some of the rights (for example, the right to health) may be difficult in practice to achieve in a short period of time, and that states may be subject to resource constraints, but requires them to act as best they can within their means.The principle differs from that of the ICCPR, which obliges parties to "respect and to ensure to all individuals within its territory and subject to its jurisdiction" the rights in that Convention. However, it does not render the Covenant meaningless. The requirement to "take steps" imposes a continuing obligation to work towards the realization of the rights. It also rules out deliberately regressive measures which impede that goal. The Committee on Economic, Social and Cultural Rights also interprets the principle as imposing minimum core obligations to provide, at the least, minimum essential levels of each of the rights. If resources are highly constrained, this should include the use of targeted programs aimed at the vulnerable.

The Committee on Economic, Social and Cultural Rights regards legislation as an indispensable means for realizing the rights which is unlikely to be limited by resource constraints. The enacting of anti-discrimination provisions and the establishment of enforceable rights with judicial remedies within national legal systems are considered to be appropriate means. Some provisions, such as anti-discrimination laws, are already required under other human rights instruments, such as the ICCPR.Labor rightsArticle6of the Covenant recognizes theright to work, defined as the opportunity of everyone to gain their living by freely chosen or accepted work. Parties are required to take "appropriate steps" to safeguard this right, including technical and vocational training and economic policies aimed at steady economic development and ultimatelyfull employment. The right implies parties must guarantee equal access to employment and protect workers from being unfairly deprived of employment. They must prevent discrimination in the workplaceand ensure access for the disadvantaged. The fact that work must be freely chosen or accepted means parties must prohibitforcedorchild labor.

The work referred to in Article6 must bedecent work. This is effectively defined byArticle7of the Covenant, which recognizes the right of everyone to "just and favorable" working conditions. These are in turn defined as fair wages withequal pay for equal work, sufficient to provide a decent living for workers and their dependents;safe working conditions; equal opportunity in the workplace; and sufficient rest and leisure, including limitedworking hoursand regular,paid holidays.

Article8recognises the right of workers to form or jointrade unionsand protects theright to strike. It allows these rights to be restricted for members of the armed forces, police, or government administrators. Several parties have placed reservations on this clause, allowing it to be interpreted in a manner consistent with theirconstitutions(e.g.,China, Mexico), or extending the restriction of union rights to groups such asfirefighters(e.g.,Japan).

Right to social securityArticle 9of the Covenant recognizes "the right of everyone tosocial security, includingsocial insurance". It requires parties to provide some form of social insurance scheme to protect people against the risks of sickness, disability, maternity, employment injury, unemployment or old age; to provide for survivors, orphans, and those who cannot afford health care; and to ensure that families are adequately supported. Benefits from such a scheme must be adequate, accessible to all, and provided without discrimination. The Covenant does not restrict the form of the scheme, and both contributory and non-contributory schemes are permissible (as are community-based and mutual schemes).

The Committee on Economic, Social and Cultural Rights has noted persistent problems with the implementation of this right, with very low levels of access.

Several parties, including France and Monaco, have reservations allowing them to set residence requirements in order to qualify for social benefits. The Committee on Economic, Social and Cultural Rights permits such restrictions, provided they are proportionate and reasonable.

Right to family lifeArticle 10of the Covenant recognises the family as "the natural and fundamental group unit of society", and requires parties to accord it "the widest possible protection and assistance". Parties must ensure that their citizens are free to establish families and that marriages are freely contracted and notforced. Parties must also providepaid leaveor adequate social security to mothers before and after childbirth, an obligation which overlaps with that of Article 9. Finally, parties must take "special measures" to protect children from economic or social exploitation, including setting a minimum age of employment and barring children from dangerous and harmful occupations.Right to an adequate standard of livingArticle 11recognises theright of everyone to an adequate standard of living. This includes, but is not limited to, the right to adequate food, clothing, housing, and "the continuous improvement of living conditions". It also creates an obligation on parties to work together to eliminateworld hunger.

Theright to adequate food, also referred to as theright to food, is interpreted as requiring "the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture". This must be accessible to all, implying an obligation to provide special programs for the vulnerable. This must also ensure an equitable distribution of worldfood suppliesin relation to need, taking into account the problems of food-importingand food-exporting countries. The right to adequate food also implies aright to water.

Theright to adequate housing, also referred to as theright to housing, is "the right to live somewhere in security, peace and dignity". It requires "adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities all at a reasonable cost". Parties must ensure security of tenure and that access is free of discrimination, and progressively work to eliminate homelessness. Forced evictions, defined as "the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection", are a prima facie violation of the Covenant.

Theright to adequate clothing, also referred to as theright to clothing, has not been authoritatively defined and has received little in the way of academic commentary or international discussion. What is considered "adequate" has only been discussed in specific contexts, such as refugees, the disabled, the elderly, or workers.

Right to healthArticle 12of the Covenant recognises the right of everyone to "the enjoyment of the highest attainable standard of physical and mental health". "Health" is understood not just as a right to be healthy, but as a right to control ones own health and body (including reproduction), and be free from interference such astortureor medical experimentation. States must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition and housing, and through a comprehensive system of healthcare, which is available to everyone without discrimination, and economically accessible to all.

Article 12.2requires parties to take specific steps to improve the health of their citizens, including reducing infant mortality and improving child health, improving environmental and workplace health, preventing, controlling and treating epidemic diseases, and creating conditions to ensure equal and timely access to medical services for all. These are considered to be "illustrative, non-exhaustive examples", rather than a complete statement of parties' obligations.

The right to health is interpreted as requiring parties to respect women's'reproductive rights, by not limiting access tocontraceptionor "censoring, withholding or intentionally misrepresenting" information about sexual health. They must also ensure that women are protected from harmful traditional practices such asfemale genital mutilation.

Right to health is inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions.

Right to free educationArticle 13of the Covenant recognises the right of everyone tofree education(free for the primary level and "the progressive introduction of free education" for the secondary and higher levels). This is to be directed towards "the full development of the humanpersonalityand the sense of its dignity", and enable all persons to participate effectively in society. Education is seen both as a human right and as "an indispensable means of realizing other human rights", and so this is one of the longest and most important articles of the Covenant.

Article 13.2lists a number of specific steps parties are required to pursue to realize the right of education. These include the provision offree, universal and compulsoryprimary education, "generally available and accessible" secondary education in various forms (including technical and vocational training), and equally accessible higher education. All of these must be available to all without discrimination. Parties must also develop a school system (though it may be public, private, or mixed), encourage or provide scholarships for disadvantaged groups. Parties are required to make education free at all levels, either immediately or progressively; "primary education shall be compulsory and available free to all"; 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"; and " 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".

Articles 13.3 and 13.4require parties to respect the educational freedom of parents by allowing them to choose and establish private educational institutions for their children, also referred to asfreedom of education. It also recognises the right of parents to "ensure the religious and moral education of their children in conformity with their own convictions". This is interpreted as requiring public schools to respect the freedom of religion and conscience of their students, and as forbidding instruction in a particular religion or belief system unless non-discriminatory exemptions and alternatives are available.

The Committee on Economic, Social and Cultural Rights interpret the Covenant as also requiring states to respect theacademic freedomof staff and students, as this is vital for the educational process. It also considerscorporal punishmentin schools to be inconsistent with the Covenant's underlying principle of the dignity of the individual.

Article 14of the Covenant requires those parties which have not yet established a system of free compulsory primary education, to rapidly adopt a detailed plan of action for its introduction "within a reasonable number of years".

Right to participation in cultural lifeArticle 15of the Covenant recognises the right of everyone to participate in cultural life, enjoy the benefits of scientific progress, and to benefit from the protection of the moral and material rights to any scientific discovery or artistic work they have created. The latter clause is sometimes seen as requiring the protection of intellectual property, but the Committee on Economic, Social and Cultural Rights interprets it as primarily protecting themoral rightsof authors and "proclaiming the intrinsically personal character of every creation of the human mind and the ensuing durable link between creators and their creations". It thus requires parties to respect the right of authors to be recognized as the creator of a work. The material rights are interpreted as being part of the right to an adequate standard of living, and "need not extend over the entire lifespan of an author."

Parties must also work to promote the conservation, development and diffusion of science and culture, "respect the freedom indispensable for scientific research and creative activity", and encourage international contacts and cooperation in these fields.

Optional ProtocolThe Optional Protocol establishes an individual complaints mechanism for the Covenant similar to those of theFirst Optional Protocol to the International Covenant on Civil and Political Rights,Optional Protocol to the Convention on the Rights of Persons with Disabilitiesand Article 14 of theConvention on the Elimination of All Forms of Racial Discrimination. Parties agree to recognize the competence of theCommittee on Economic, Social and Cultural Rightsto consider complaints from individuals or groups who claim their rights under the Covenant have been violated. Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints referring to events which occurred before the country concerned joined the Optional Protocol are not permitted. The Committee can request information from and make recommendations to a party. Parties may also opt to permit the Committee to hear complaints from other parties, rather than just individuals.The Protocol also includes an inquiry mechanism. Parties may permit the Committee to investigate, report on and make recommendations on "grave or systematic violations" of the Convention. Parties may opt out of this obligation on signature or ratification.The Optional Protocol required ten ratifications to come into force.

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

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

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

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

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

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

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

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

In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin.

The question of whether an individual belongs to a particular racial group is to be decided, in the absence of justification to the contrary, by self-identification.

Prevention of discriminationArticle 2of the Convention condemns racial discrimination and obliges parties to "undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.It also obliges parties to promote understanding among all races. To achieve this, the Convention requires that signatories: Not practice racial discrimination in public institutions Not "sponsor, defend, or support" racial discrimination Review existing policies, and amend or revoke those that cause or perpetuate racial discrimination Prohibit "by all appropriate means, including legislation," racial discrimination by individuals and organizations within their jurisdictions Encourage groups, movements, and other means that eliminate barriers between races, and discourage racial division

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

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

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

Condemnation of apartheidArticle 3condemnsapartheidandracial segregationand obliges parties to "prevent, prohibit and eradicate" these practices in territories under their jurisdiction. This article has since been strengthened by the recognition of apartheid as acrime against humanityin theRome Statute of the International Criminal Court.

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

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

The Committee on the Elimination of Racial Discrimination regards this article as a mandatory obligation of parties to the Convention,and has repeatedly criticized parties for failing to abide by it. It regards the obligation as consistent with thefreedoms of opinion and expressionaffirmed in the UNDHR and ICCPR and notes that the latter specifically outlaws inciting racial discrimination, hatred and violence. It views the provisions as necessary to prevent organized racial violence and the "political exploitation of ethnic difference."

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

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

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

Individual complaints mechanismArticle 14of the Convention