What is International Law?

 It is a law that focuses primarily on the relationships between states.

 International treaties, international customs, general principles of law, state practices

are its Basic Sources.

What is international Human Rights Law?

 It is one of the branches of International law.

 Individuals are the subject of the Human Right law.

What is Human Rights?

 Human rights are rights which a person enjoys by virtue of being human, without any
supplementary condition being required.

 Human rights are universal legal guarantees which protect individuals and groups
against action which interfere with fundamental freedoms and human dignity.

 The idea of human rights originated from the need to protect individuals against the
(arbitrary) use of state power.

 It covers:

Civil and political rights (right to life, liberty, property and democratic participation; Fair
trail rights);

Economic, social, cultural rights (rights to work, education, health, social security and an
adequate standard of living);

Collective rights (rights to self-determination, equality and development).

 Human Rights and fundamental freedoms are guaranteed in the universal Declaration
of human Rights 1948 (UDHR) and in various treaties covenants and conventions),
declarations, guidelines and bodies of principles.
 Characteristics Features of Human Rights

 They are internationally guaranteed, and are universal. (Human rights apply equally for
all people, taking account of certain culture differences.)

 They are legally protected.

 They protect the fundamental freedoms and dignity of human beings

 They protect individuals and groups.

 They cannot be taken away by state in general. (But some right are derogable)

 They are equal, interdependent, inalienable and indivisible. (No right is more important
than the other.

Eg. Without right to housing, the right to privacy has little meaning. Effectively
guaranteeing the right to education is essential for the meaningful exercise of the right
to vote and to freedom of opinion and information)

State Obligation

 All human rights treaties reflect the notion that “It is primarily the duty of states and
their authorities to protect, respect and promote all human rights”

 States are guardian and duty bearers.

 State obligations are-

1. To Respect- States have a duty to ensure that human rights are respected by
state authorities or state agents themselves and by citizens, corporations and
other non-state actor operating within their boundaries.

2. To Protect- states have a duty to ensure that the constitution and other laws are
geared towards the protection of the human rights(both in relations between
the state and individuals, and individuals themselves.)

The right should be protected through adjudication in case of disputes. State

bears the obligation to modify their legislative provisions, penal provisions and
cultural patterns in accordance with International instruments.

3. To Fulfill- States have a duty to ensure that human rights are promote and
implemented, so that individuals can fully enjoy those rights through the
development of adequate policies, the allocation of sufficient budgets and other
resources by the state, as well the creation of space for non-state actors to do
their work in a proper way.

Human Rights Violations

 The failure of a government to perform any of the state obligations

(respect, protect and fulfill) constitutes a violation of human right.

 “Human rights violation” includes government transgressions of the

rights guaranteed by national regional and international human right
laws and acts and omissions directly attributable to the state involving
the failure to implement legal obligation derived from human
standards.

Violations occur when:

- State fails to implement legal obligations

- A law, policy or practice deliberately contravenes or ignores

obligations held by the state, or

- When the state fails to achieve a required standard of conduct or

result.

- When a state withdraws or removes existing human rights

protections.

 The phrase “human right abuses” is used as a broader term than

“violations” for violative conduct committed by non-state actors. (stated in
OHCHR) manual)

 Human Right and Fundamental Rights.

 Fundamental Right are those human right which are guaranteed in the
constitution of the country.

 All fundamental Rights are human rights, but not all human right are
fundamental rights.

 International human Rights instruments

 Hard laws
laws that are “legally blinding” in nature.

Eg.9 core international Human Rights treaties are:

 International covenant on civil and political Rights(ICCPR)

1966.

 International covenant on Economic, social and Culture

Rights(ICESCR), 1966.

 International convention on the Elimination of all form of

Racial Discrimination (CERD), 1965.

 International convention on the Elimination of all form of

Discrimination against women (CEDAW) 1979.

 Convention on the Rights of the child. (CRC) 1989.

 Convention Against torture and other cruel, Inhuman or

Degrading Treatment or punishment (CAT) 1984.

 International Convention on the protection of the Rights of all

Migrant Workers and Members on their Families (MWC), 1990
(Enforced from 2003).

 Convention on the rights of Persons with Disabilities (CRPD),

2006 (Enforced from 2008).

 International Convention for the protection of all persons

from Enforced Disappearance (CED), 2006 (Enforced From
2010).

 Other Hand Laws: optional Protocols (OP) of ICCPR, ICESCR,

CRC, CEDAW, CAT, and CRPD.

[Nepal is party to 7 core Human Rights Treaties – ICCPR, ICESER, CERD, CEDAW,
CRC, CAT, CRPD//+ Optional protocols of ICCPR, CRC, CEDAW}

Soft laws applicable in relation to criminal proceedings and fair trial.

Soft laws are non-legally binding, but morally-binding laws.

 Eg.

 Universal Declaration of human rights, 1948(the first international legal

instrument on human rights)

 Standard Minimum Rules for the treatment of prisoners, 1955

 Basic principles for the treatment of prisoners.

 Body of Principles for the protection of all persons under any form of
Detention or Imprisonment.

 United Nation Standard Minimum Rules for Non-Custodial measures

(Tokyo Rules)

 United Nationals Rules for the Protection of Juveniles deprived of their

Liberties.

 United National Guidelines for the Prevention of Juveniles Delinquency

(The Riyadh Guidelines)

 Guidelines for Action on Children in the Criminal Justice System.

 Declaration on the Protection of persons from being Subjected to torture

and other cruel, Inhuman and Degrading Treatment or punishment.

 Principals on the effective Investigation and Documentation of torture

and other cruel, Inhuman or Degrading Treatment or Punishment.

 Safeguards guaranteeing protection of the rights of those facing the

death Penalty.

 Basic principles on the Independence of the Judiciary.

 Basic Principles on the role of Lawyers.

 Guidelines on the Role of Prosecutors.

 Code of conducts for Law Enforcement Officials.

 Basic Principles on the use of Force and Firearms by law Enforcement

Officials.

 Declaration of basic Principles of Justice for victims of Crime and Abuse of

Power.
  Basic Principles and Guidelines on the Right to a Remedy and Reparation.

 Principles on the Effective Prevention and Investigation of Extra- Legal,

Arbitrary and Summary Executions.

 Etc

Domestication of International Law - Theories

 Theories of Monism and Dualism are two different approaches to the

process of assimilating and harmonizing international law into national
legal systems.

1. Monism-

It assumes that the domestic and international legal system form

a unity. International law does not need to be translated into
national Law. The act of ratifying the international law
immediately incorporates the law into national law. International
law can be directly applied by a national judge, and can be
directly invoked by citizens, just as if it were national law.

Eg. The Netherlands where the constitution declare-“…statutory

regulations in force within the kingdom shall not be applicable if
such application is in conflict with provisions of treaties that are
binding on all persons or resolutions by international
institutions….”

2. Dualism-

Dualism Emphasize the difference between national and international

law. It requires the translation of the international law into the national
law to enforce it. Without this translation, International law does not
exist as law. International law has to be national law as well, or it is no
law at all.

Eg. Uk – International law is part of British national law only when

it is accepted in national law. A Treaty has no effect in municipal law
until an Act of Parliment is passed to give effect to it.

 Monism or Dualism is a matter of national legal tradition.

  Every state decides for itself whether to follow monism or dualism,
according to its legal traditions. International law does not dertermine
which point of view is to be preferred. International law only requires
that its rules are respected.

 States are free to choose the way, but they have to respect
international law. They are always accountable if they fail to adapt their
national legal system in a way that they can respect international law.

 Once State becomes a party to any international law, State bears the
obligation to modify their legislative provisions, penal provisions and
culture Patterns I accordance with international instruments.

 Both a monist state and a dualist state can comply with international law.
However, a Monist state is less at risk of violating international rules,
because its judges can apply international Law directly.

 Which approach has NEPAL adopted- Monism or Dualism???

Treaty obligation of Nepal has been created by:

-Treaty Act 1990 Section 9(1): Anything contained in any law of Nepal
shall be void if it inconsistent to any provision of a treaty or agreement in
which Nepal is a party through ratification or accession or acceptance or
approval of the parliament, and such provision of the treaty or agreement shall
be enforced as a law of Nepal. (Monism)

Supreme Court Jurisprudence?

 They reflect Contrasting opinion on monism and dualism.

 Madhav kumar Basnet vs. Council of Ministers and Others-

“Judicial review is not possible when the Nepali Law contravenes with the
.treaty.”(Monism).

Jyoti paudel vs. Prime Minister’s office, SC Bulletin 2066(Falgun), Page

“Suoreme Court, being a Guardain of the Fundamental Rights of citizen, can issue an
order in the name of the government by invoking the extraordinary jurisdiction of the
court when Nepal does not comply with the Treaty obligation.” (Monism)

Dinesh Kumar sharma vs. Prime Minister’s Office, NKP 2063, Pg 1137 –
 Dualist approach taken into consideration/ Contrasting precedent.

-“The treaty to which Nepal is a party, can be enforced as a law. But it cannot at once
be a law. Enforcing it as a law being a law are two different things. Not in all conditions
can treaty be accepted as a law formulated through the legal process.”

SUMMARY POINTS

. International Law focuses on relationship between states

. Human Rights law is a branch of International Law; Individual are its subject.

. Human Rights are inherent rights which a person enjoys by virtue of being human.

. Human Rights protect dignity of human beings and are universal, legally protected,
equal, interdependent, inalienable and indivisible.

. States, being guardian of citizens, have primary obligation to respect, protect and
fulfill all human rights.

. The failure of a government to perform any of the state obligations constitutes a

violation of human rights.

.There are 9 core human rights treaties, of which Nepal is party to 7 treaties. Eg.
International Covenant on civil and Political rights (ICCPR) 1966; Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Pinishment (CAT) 1984;
Convention on the Rights of the Child (CRC) 1989.

.Universal Declaration of Human Rights (UDHR), 1948 is the first international legal
instrument on human rights.

.Monism and Dualism are two different approaches to the process of assimilating and
harmonizing international law into national legal systems. Every state decides for itself
whether to follow monism or dualism.

.There are 2 types of Human Rights Monitoring Mechanism:

1. Treaty- based monitoring mechanism.

2. Charter- based monitoring mechanism

. Under Treaty based monitoring mechanism, there are treaty bodies (Committees of
experts) that monitor the implementation status of the individual conventions by the
states parties. Eg. Human Rights Committee (HRC) established ICCPR.
 . Major Functions of Treaty Bodies are:

-Consider state party reports on periodic basis.

-Provide Concluding Observations and Recommendations

-Receive Individual and Inter- state Complaints (Develop Juissprudence)

- Provide General Comments to interpret the provision of Convention.

. Charter based human rights monitoring mechanisms (also called Special Procedures)
examine, monitor, conduct country visit and publicly report to Human Rights Council on
findings and recommendations on humanrights situation in specific countries or on thematic
issues on worldwide level.

. Special Procedures: 41 Thematic Mandates, Country Mandates,1503 Complaint Procedure.

. Universal Periodic Review (UPR) is a new human rights mechanism through which Human
Rights Council reviews on a periodic basis, the fulfillment of human rights obligations and
commitments by each of the 193 United National Member States through interactive dialogue
sessions.

.Europe, the Americas and Africa have their own Regional Human Rights systems with regional
courts (European Court of Human Rights, Inter- American Court of Human Rights, African Court
on Human and Peoples’ Rights.). Asia do not have it.

. Other International Courts and ad hoc Tribunals exits. Eg.ICJ, ICC, ICTY,ICTR.

. international law provides Universal Jurisdiction for certain crimes which pose serious threat
to international community. No place can be a safe haven for the perpetrator. Eg. Torture
under CAT.