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LAW 510 /FUU/UITM

PROF MADYA ROHANI MOHD SHAH
9 Dis 2013
SLT - THE STATUS OF INDIVIDUAL IN A STATES

1. Introduction
a. International law looks upon individuals in two different ways:
1) International law ignores individuals.
a) This is the traditional view based on the Law of Nations idea that
international law applies only to states.
b) Individuals do have derivative rights: the state of which they are a national can
seek redress on behalf of that individual from any foreign state that causes the
individual injury.
1] Rationale: an injury to a national is an injury to the state.
2] This is known as the "law of state responsibility."
a] States may sue for virtually any type of injury done to a national.
b] Caveat: the individual may not pursue his own claim.
2) International law treats individuals as subjects.
a) This view has developed over the last 50 years.
1] Based on the idea that individuals are granted rights by international law.
2] This is known as human rights law.
a] Allows individuals to pursue their own claims.
b] Caveat: the kinds of claims that individuals can raise are limited.
1} Claims must be based on rights granted in treaties or in widely recognized
international declarations.
Case 6-1. DE SANCHEZ v. BANCO CENTRAL DE NICARAGUA
Case 6-2 : Lina Joy Case

A. SUBSTANTIVE INTERNATIONAL LAW
1. The United Nations Charter
a. Effect of human rights provisions in any Conventions or treaty:
1) Originally not intended to be binding.


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a) Art. 55 requires the UN to "promote" human rights.
b) Art. 56 "pledges" UN member states to promote human rights.
2) Caveat: A contrary interpretation is possible.
a) The Charter is a statement of international public policy that the states of the
world have a duty to respect and observe.
Case 6-2. RE DRUMMOND WREN
Case 6-3 : Params Statement in UN as representative of Malaysia binding effect - Advisory
Opinion

2. Universal Declaration of Human Rights
a. Two kinds of rights are proclaimed:
1) Traditional western civil liberties and political rights.
2) Economic, social, and cultural rights as they had evolved to the 1940s.
b. Duties are proclaimed:
1) "Everyone has duties to the community."
2) An individuals rights may be restricted:
a) "For the purpose of securing due recognition and respect for the rights
and freedoms of others."
b) To protect "morality, public order, and the general welfare."
c. Legal Effect of the Universal Declaration of Human Rights.
1) Originally most of its drafters considered it to be a nonbinding.
2) Today many regard the Universal Declaration as a statement of customary
international law.
a) More than 70 states have incorporated the Universal Declaration in
their constitutions or main laws.
Case 6-3. FILARTIGA v. PENA-IRALA

3. The United Nations Covenants on Human Rights
a. These establish binding international legal obligations for states parties.
b. International Covenant on Civil and Political Rights of 1967.


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1) Incorporates the civil and political rights provisions of the Universal
Declaration.
2) Requires each state party "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."

3) Optional protocols grant additional rights vis--vis the ratifying states.
a) First Optional Protocol allows individuals to directly bring
complaints.
b) Second Optional Protocol requires ratifying states to abolish the
death penalty.
c. International Covenant on Economic, Social, and Cultural Rights of 1967.
1) Incorporates the economic, social, and cultural rights provisions of the
Universal Declaration.
2) Requires each state party "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 legislation."
4. Other United Nations Human Rights Laws
a. Convention on the Prevention and Punishment of the Crime of Genocide of 1948.
1) Defines genocide as the "intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group, as such," by:
b. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief of 1981.

c. Declaration on the Right to [Economic, Social, Cultural, and Political] Development of
1986.

d. Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960.
1) Calls for the speedy granting of independence to colonial countries and peoples
based on the principal of self-determination so that they can "freely determine
their political status and freely pursue their economic, social, and cultural
development."
Case 6-4. OPINION NO. 2


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e. Convention on the Elimination of All Forms of Discrimination Against Women of 1981.
Case 6-5. EPHRAHIM v. PASTORY AND KAIZILEGE

5. Human Rights Law in Europe
a. European Convention for the Protection of Human Rights and Fundamental Freedoms
(commonly called the European Convention on Human Rights) of 1950 establishes
traditional political rights.
Case 6-6. THE SATANTIC VERSES CASE
b. European Social Charter establishes social and economic rights similar to those set out in
the Universal Declaration of Human Rights.
6. Human Rights Law in the Americas
a. American Declaration of the Rights and Duties of Man of 1948 establishes traditional
political rights.
1) The Statute of the Inter-American Commission on Human Rights provides that
the Declaration defines what human rights are with respect to states that are not
parties to the American Convention on Human Rights.
b.American Convention on Human Rights of 1969 establishes traditional political rights.
Case 6-7. RESTRICTIONS TO THE DEATH PENALTY
7. Human Rights Law in Africa
a. African Charter on Human and Peoples Rights of 1981 is unique in several ways:
1) Establishes rights for peoples as well as individuals.
2) Allows states parties to place extensive restrictions and limitations on the rights
proclaimed for individuals.

See Trendexc Case
B. PROCEDURAL HUMAN RIGHTS LAW
1. Procedures Followed by the United Nations Commission on Human Rights
a. Many individuals send complaints to human rights abuses to UN.


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1) 50,000 annually.
2) UN Secretariat forwards about half of the petitions it receives to the UN
Commission on Human Rights for review.
2. Other International Human Rights Forums
a. International Covenant on Civil and Political Rights of 1966.
1) Establishes a Human Rights Committee (HRC) that may:
a) Receive occasional reports from state parties on the measures they have
taken to implement the Covenant.
b) Accept complaints of noncompliance (if the concerned state party has
agreed to this) from other state parties concerning violations of the
Covenant.
c) Consider complaints from individuals (if the concerned state party is a
party to the First Optional Protocol).
Case 6-9. ALMEIDA DE QUINTEROS and QUNITEROS ALMEIDA v. URUGUAY