The Circassian Legal Rights
Prepared by: Adel Bashqawi
20, May, 2014, the 150 years Commemoration of the Circassian Genocide, Ethnic Cleansing, Deportation and other associated evil acts carried out by Tsarist Russia…
The Circassian homeland had been known over thousands of years that is located in the area situated in the North – Western Caucasus adjacent to the North – Eastern shores of the Black Sea extending between the Sea of Azov and Abkhazia, where the region had witnessed over the years, the invaders, and colonizers’ greedy attempts to control Circassia through campaigns and wars of aggression which had pervaded hit and run operations; but the Circassians and through exercising their natural right to freedom and national dignity, they managed every time they were subjected to attempts of controlling them and their homeland, to take refuge in the mountains and continue the resistance and raid operations on their enemies until eventually able to expel or eliminate them, but they friendly coexisted also with some peoples and nations that crossed the region, whether temporarily such as the ancient Greeks or permanently with those who are of Persian or Turkish origins which moved and eventually inhibited the Caucasus region, where some of them have resided next to some Circassian tribes, and Circassians were thus able to stay in their homeland, which they inherited from their ancestors, until the Russian empire had proclaimed an uncompromising aggressive 101 years long war for the control of Circassia at any cost and to eliminate the presence of the Circassian nation, which was considered the longest war that the Russian state had ever fought through its history, that is the Russian – Circassian War or as it is called the Russian – Caucasian War; but was called by the Russian government, until the present time, the Caucasian War, in an attempt to eliminate its actual character, regarding its occurrence and repercussions!
Matching reality with the results and their implications
The Circassian nation’s inalienable, non- waived and non-forgotten rights, cannot and should not be neglected or leaving it loose, because Circassians are eager to live in their own homeland like any other nation and to regain their usurped rights that are more loving to the heart and conscience than has been obtained, and what some people fancy that in this world what is more precious than homeland, especially since the quest for that is a noble goal by itself, and that cannot be achieved except through dedication, honesty and altruism to reach the desired objective, and anyone who forgets, overlooks homeland or thinks to waive the legitimate national rights, whether the individual or collective ones, he/she would be considered hypocrite, opportunist and cheap agent for every lurk against the nation, whether at homeland or at the whereabouts of Circassian societies and communities throughout the world.
With regard to the above, the logic imposes to investigate the rules pertaining to the various areas of human thinking in various fields of life; human being, and “in order to modify thoughts in terms of method and image, as well as in terms of content and material, needs to know the rules and laws of logic, otherwise the human being will not be able to think properly, that distinguishes right from wrong and will be involved in error and intellectual deviation without realizing the reason for that”. At this point, accordingly, it’s inferred through knowledge that correcting thinking process and matching logic with reality will necessarily lead to reach the truth lying ahead, as those who are “not familiar with the laws of logic or do not observe them, there is no guarantee for the trustiness of their thoughts in the first place” (http://www.fibonicci.com/logical-reasoning/ ) (http://mises.org/books/lessons_in_logic_jevons.pdf).
In a related development, but appeared at a time when the Russian – Circassian War came to an end, which did not apply to the Circassian case at a time the Circassians had endured murder, genocide and ethnic cleansing that led to the forced deportation of ninety percent of those who remained alive in harsh and brutal conditions, where the International Humanitarian Law had been developed then approved during the last one hundred and fifty years under the auspices of the International Committee of the Red Cross, which was released later in the form of international rules, “were unanimous on one fact that the goal of this law is to protect people who suffer from the scourge of war”, and “includes in its broadest sense the entire international legal texts, of which provide protection and rights for the individual”; which is “the set of international rules laid down by treaties or norms, which is specifically designated for solving the problems of human character arising directly from international or non-international armed conflicts, which limit ” – for human considerations – from the privilege of the conflict parties “choice of choosing fighting methods or means, and they protect individuals and properties” (http://www.icrc.org/eng/war-and-law/index.jsp).
Natural Right and Authoritarian Regimes
The natural right is the right that every human being enjoys since the moment of birth, such as the right of human dignity and the freedom to choose what suits him to self-determination. And it determines that every human being, regardless of gender, age, place of residence, color, and ideological affiliation an inalienable right possesses as human being. The inalienable rights are as the right of Property (ownership right) which is not like the acquired rights, so “no one can dispose such as despoil, abandon or replace”, and “the natural rights are closely related to human rights”, these rights are considered eternal and not interim, all of them belong entirely to the set of basic rights and no human authority can intervene or even effect them (http://plato.stanford.edu/entries/natural-law-ethics/).
It is axiomatic that “Ottoman Turkey” also bears part of the responsibility for the consequences of the Circassian ordeal, which Ottomans played a role in a numerous of its elements, whether negatively or positively that ultimately led to the deportation of displaced Circassians to locations, were decided and endorsed by the Ottoman Empire’s authorities, and aimed in resultant at securing its interests regarding the protection of borders and boundaries on the outskirts of the empire’s sprawling parts, which were in a state of weakness and disintegration; now, from this perspective comes the duty of the Turkish state in supporting human rights issues that relate to the Circassian nation, and to extend assistance and advocacy to the stranded Circassians in the midst of civil war taking place nowadays in Syria, to get them to safe haven “first”, which has happened already on a limited scale when aircrafts flew several groups of displaced Circassians of Syria from Beirut to Gaziantep, Turkey to accommodate them in a compound specially allocated for Circassians of Syria; and “secondly” to support the Circassian nation in order to obtain its ultimate goal, namely the restoration of the Circassian rights to return to their Motherland and the recovery of the usurped rights.
Because the ordeal suffered by the Circassian nation was and still a result of the policy of tyranny and the autocracy of imperial Russia and the continuation of successive Russian governments on the same arrogant and sadistic approach in dealing with the Circassians and their cause, which has not been dealt with as required, as it is imperative to shed light on tyranny based regimes for the sake of approximation and comparison, which consist of fascism, racism and Nazism that do not pay any interest to high human values and keep always to intervene in the lives of individuals and groups based on oppression and the policy of acquisition and bullying in order to impose a fait accompli which will not be in all cases in line with the interests of those to be suppressed, but to have an impact on their morale and the course of their lives, thus the referred regimes can be described as follows:
* Fascist regime, “the individual becomes in fascist regime countries a tool that doesn’t have in fact except the initial rights (such as breathing, for example)”. “In the fascist regime all natural rights are wasted, as these regimes try to build a social core of one color, and they do not hesitate in that notion of trying to break the backbone of the individual and to forcibly intervene in the formation of the individuals’ core to go in parallel line with the regime’s principles, which considers it got the final word, because its goal at the end is elevated and honorable, that is the goodness for all (as it believes and reckons)”, or the protection of the entity that it is keen to promote and strengthen, ”the individual isolates himself/herself and collapses in attempts to protect own individuality, often hypocrisy becomes the most important means of human horizontal interaction. During the last days of fascist regimes, the authorities which would be merged in a single authority, doesn’t hesitate to exclude all the individuals who differ with its opinion and to deprive them even of primary rights such as the right to life”.
* “The Nazi regime rejects the existence of a race or color beside the race, which considers the best of all races”, as it “tries to intervene with individuals in form and substance way”.
* The Apartheid regime is based on the laws of the rule of the minority over the majority, as was the case in South Africa, as the goal of the race division regime (apartheid) to create a legal framework that maintains the economic and political domination of the minority. Individuals are divided into ethnic and class groups (http://www-cs-students.stanford.edu/~cale/cs201/apartheid.hist.html).
The excessive in bragging and egotism, which controls and haunts some people, makes it necessarily holding to own and selfish interests regardless of the circumstances, results and the ways chosen, and tries to pursue and enforce to achieve own ambitions and objectives. It is not secret that most wars occur in order to satisfy the expansionist ambitions of the lands of others and in order to control the destinies, fortunes and fate of nations and peoples. History bears witness to injustice, murder, destruction, occupation and deportation through violations practiced by tyrants to attack the freedoms of others, deprive them of their rights and the occupation of their homelands, through the cruelty that knows no limits or restrictions in order to satisfy the colonial desires and freaks (http://www.britannica.com/EBchecked/topic/406522/law-of-nature).
UNESCO’s Efforts to Protect World Heritage Sites in the North Western Caucasus
The World Heritage Committee of UNESCO (United Nations Educational, Scientific and Cultural Organization) and through the (33rd) session which was held in the city of Seville, Spain, from 22 to 30, June, 2009, had studied 178 cases of World Heritage sites (http://whc.unesco.org/en/list/), as it has also considered requests for the inclusion of new sites on the list of “UNESCO World Heritage”, as the “Committee’s meeting addressed the need to preserve the World Heritage sites in the Western Caucasus district, especially the Sochi region, which will host on its soil, the 2014 Winter Olympics Games, as well as the surrounding areas”.
The concluding resolution of theCommittee supported by the recommendations of the Greenpeace Organization in the Russian state called for taking decisions about the legal system for the protection of heritage, to clarify the boundaries of the protected area, the rules of management of natural reserves as soon as possible, and in addition to that, to request from the Russian government to review the plans and programs related to the Federal plan known as “Southern Russia (2008-2012)”, which was decided to implement in the province of Krasnodar, the Republic of Adygea and the Republic of Karachay-Cherkessia, and to ensure compatibility with protection of valuable sites that are considered part of the World Heritage, as it had requested detailed maps and information on the status of the 2014 Winter Olympic Games and other infrastructure at the surrounding sites and areas that relate to the so-called the Heritage of Sochi National Park, and documents to assess the impact of these projects on environmental, regional and global values of these sites, and the need to publish these documents to the public; in addition to that, the resolution to the World Heritage Committee stated that Russia should provide a report on the first of February 2010 on the state of heritage sites and the World Heritage Centre, and the measures taken to implement the recommendations of the World Heritage Committee and the International Union for Conservation of Nature, held in 2008, in order for the Committee to make sure to see it in its 34th session, held during its next meeting (http://www.ens-newswire.com/ens/oct2010/2010-10-14-insgaz.html) (http://sochiwatchdotorg.wordpress.com/2013/02/25/greenpeace-and-wwf-give-a-light-on-environmental-violations-related-to-sochi-2014-winter-olympics/).
Not surprisingly, the Russian Federation has determined at a particular time and with premeditation to provide Sochi to host the Winter Olympic Games in 2014 as part of its plan aimed to address the tide of Circassian nationalism, which apparently tried to present itself to the world in contrary to the facts and the proceedings, nay looked for changing the features of human heritage and natural areas, and attacking the wildlife, let alone the deletion and blurring of the Circassian identity of the region and try to show it as a pure Russian and that it does not belong in any way to its regional surroundings; there is no better way of showing this image except through Sochi area, which is considered a symbol of the national Circassian resistance, and being the last capital city of free and independent Circassia, despite the lack of necessary infrastructure in Sochi for holding those games in addition to the inappropriate environment, the nature of the weather and the need to spend tens of billions of dollars from the Russian treasury, which had experienced weakness and asthenia as a result of the global financial crisis at the time. Moscow insisted on the subject of grabbing the opportunity to hold the games in Sochi amid feverish competition, in a way that shows the accurate belief that the (official) Russian Federation was trying to impose a fait accompli in Sochi and the North Caucasus Region, without solving the core issues as well as broadcasting propaganda to be harnessed within a coordinated framework by ignoring the Circassian rights and to avoid telling the underlying truth that Circassians lived in their homeland for over six thousand years in a row and graves of victims of the Circassian genocide are scattered in Sochi area, especially in Krasnaya Polyana; forgetting the fact that the port of Sochi was one of the major ports that the Russian invading forces had used to gather Circassians to be uprooted from their homeland in order to deport their vast majority across the Black Sea away from the Caucasus. That suggests that the Federal Russian policy is based on making Circassians reach the edge of hopelessness and despair, to a deadlock in order to reach to a status quo, surrender to submissiveness and not to reclaim the usurped Circassian rights.
The lack of a moral dimension element has contributed to the attack on the North West Caucasus UNESCO protected natural World heritage forests and cultural icons, which led to holding the Winter Olympic Games in Sochi in February, 2014. For the intention of ignoring all the warnings and prospects, the Russian authorities hanged on to the typical Russian hostile attitude towards the Circassian nation despite all warnings, where a “Formula One” facility was built and hosted inaugural Grand Prix in October 2014 (https://www.formula1.com/content/fom-website/en/championship/races/2015/Russia.html). All that did not satisfy their instincts, but the Russian authorities are planning to host in Sochi the 2018 FIFA World Cup (http://www.sochicityguide.com/world-cup-2018).
The Circassian Rights and their Link to International Law
The Circassian rights are not limited for the right to return a fraction of the deported Circassians to their Motherland, located in the North Caucasus, but it is far more comprehensive than that, as the multi elements case cannot be accepted to be subjugated to conditions, moods and promises with empty contents, if conducted on non-seriousness and bad intention of those who promote and call for them, which would subsequently affect a collective genuine right of all members of the Circassian nation with no exception.
The right of return to homeland is a preserved right for any people, which expelled, deported or taken out of its native land for any reason and at any time, and must return to the original place, territory or home in which it used to live an ordinary life before the date of deportation, and this right applies to every person, whether a man or a woman, also it applies to the descendants and offspring of either one of them, no matter how many they are, their whereabouts, place of birth, and different conditions, including the political, social and economic ones. The “right of return is an inalienable, and emanated from the universally recognized International Law”. It is “guaranteed by articles of the Human Rights Charter which was released on December, 10, 1948, as the second paragraph of Article 13 states the following: (Every individual has the right to leave any country, including his own and to return to his country)”, the right of return “does not statute of limitations”, no matter how long period during which those who are denied homeland have been usurped their land are denied to return to their homeland, because it is “an inalienable right”. This means that it is of “the established inalienable rights like the rest of the human rights” that is no statute of limitations overtime, and “not subject to negotiation or compromise, it is not waived, amended or their concept change in any political treaty or agreement of any kind”.
And the “right of return also follows the sanctity of private property that does not disappear with the occupation or with the change of sovereignty over the country. The right of return applies to every natural citizen whether owned a land or not, because expulsion of a refugee or leaving own homeland does not deprive him of his original nationality and the right to citizenship, therefore the right of return is also linked to the right to identity that was lost and belonging to the homeland, which was deprived of. The right of return does not mean returning only to anywhere within the homeland, which was deported from, because the return of a refugee is only returning to the same place, which was expelled from or had departed for any reason, whether himself/herself, parents or grandparents” (http://www.ohchr.org/Documents/Publications/pinheiro_principles.pdf).
The “Ethnic Cleansing” is given this description according to the International Law, and is “legally considered a no statute of limitations war crime where every person from the most junior soldier to the highest chief that did so will be tried, whether by order, execution, incitement or failing to prevent the crime, according to the Rome Statute of 1998, which accordingly the International Criminal Court was originated”. So “the process of the systematic expulsion of a race from own homeland is a war crime punishable under International Law, as well as prevent them from returning by killing them, poisoning their wells, the destruction of their homes, burning their crops, by any other means, whether by word or action is also a war crime”. Anyone who executes one of these crimes, calls for, or instigate to perform by deed or word, or keeps silent about it if he has the authority, whether by encouragement, bullying, advertising or temptation would have committed a war crime. And “according to the Rome Statute, the citizen of the Aggressor State’s resettlement (exaction) of the occupied territory is a war crime, too”.
On the other hand, the gathering of the individual personal rights, and relying on the right of self-determination, which was confirmed by the United Nations for all peoples in general, make the right of return also a collective right. Thus every agreement to drop a right, is inalienable, legally invalid, as will as it is morally rejected in the world’s conscience, and Article II of the Fourth Geneva Convention of 1949 states that any agreement between the occupying power and the occupied people or their representatives is legally void, if it dropped its rights; an example can be taken of what happened in different places such as South Africa to get rid of apartheid and the black majority’s retrieve of their rights, as well as what happened in East Timor, Kosovo and other similar cases.
The refugees have the right to compensation according to the general law of compensation. They have the right to compensation for the individual material losses such as the destruction of their homes, the exploitation of their property and seize them, the individual moral losses, such as suffering, asylum and loss of family members, the collective material losses such as facilities and capabilities of homeland such as roads, bridges, ports, water, the natural resources, minerals and the holy places, and the collective moral losses, such as loss of nationality, identity, Diaspora (alienation), the uprooting from homeland, racial discrimination, national archives and civilized legacy. They also have the right to compensation for war crimes, crimes against humanity, and crimes against regional and global peace. It may be recalled here, the German reparations for the victims of Nazism (http://www.timesofisrael.com/germany-increases-reparations-for-holocaust-survivors/), and the United Nations has specific laws and known procedures, which were successfully applied after the Second World War in compensation cases for Bosnia and Herzegovina, as well as to compensate the affected of the occupation of Kuwait in 1990.
Also, the safety, welfare and security of the residents of the territories that witness military operations must be ensured, and to facilitate the return of those who fled these areas since the outbreak of hostilities, which is in this instant not only confirms the right of return, but confirms the notion that it was obligatory deportation, and as a result of repercussions of the fighting and colonialism.
The right of return mentioned in the canons of the United Nations for Human Rights and the relevant laws, and overall of what came from the international resolutions in this context, shows that the right of return and compensation are of rights that do not expire with the elapse of time and they are of the rights closely related with groups and be claimed by wherever they are on the basis of legitimacy and the right and as substitute for oppression and injustice. It appears that there are two sets of rights that could be determined for the Circassians in the general International Law: Firstly as groups that were forced at one time to exit (exposure to forced deportation) from their native homeland to reside as minorities in non-state of origin, and here it is determined to them what can be determined for any people that had been expelled from its homeland as mentioned above, and that is linked with the set of rights granted to them in the guardianship of the Russian State; and secondly their rights as minorities, each of which is present in the territory of a State other than the State of origin (and this part is not in the scope of discussion here).
The Circassians have the right to claim from Russia in accordance with the historical sequence that indicates the fact of forced deportation of the Circassians from their original homeland, to search for alternative homelands, and far from the situation that these scattered communities have reached, it “shows that the general International Law contains the legal cornerstones which illustrate that Circassians have the right to claim their historical rights that have not and will not be statute of limitations”, and these rights as stated above are limited to the right to return and get compensation altogether. “Compensation is not considered an alternative for the right for return, but it is another prerogative in addition to the right of return”.
The rights of Circassians as minorities even in their own original homeland require reference to “the European Renaissance era, which witnessed agreements and declarations relating to the protection of fundamental human rights, including with regard to minorities. They ranged between the American Declaration of Independence in 1776 to the Declaration of Human Rights in France in 1789 and the Vienna Convention of 1815, which prohibited the slave trade, to the Treaty of Berlin in 1878, which focused on the rights of minorities in general”. And “thus declarations and agreements had dribbled based on this declaration, which is considered the basic root to all treaties that followed to this day, of which for example, but not limited to the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973 – 1978, and the Resolution of the General Assembly of the United Nations of 1981, which Article VI thereof confirmed the inclusion of all fundamental freedoms, including freedom of thought, conscience, religion, belief, worship, initiation, writing, feasts and ritualism. In reality, the United Nations 1992 Declaration can be considered a research reference in addressing the special rights of the minorities as it included the rights of minorities in a separate document sought to compel States to provide security and protection necessary for the existence of minorities and preserving their identity, culture and their individual and collective rights”.
(Among the most important subsequent treaties with regard to the rights of minorities is the Treaty of “Sèvres” of 1920, which stipulated on the obligation to protect the rights of minorities, and granted them the right to submit complaints to the International Tribunal, up to the birth of the Charter of the United Nations in 1945, which expressed the birth of a new world based on mutual respect for the will of the peoples and their desire for peace and stability. Then the Universal Declaration of Human Rights of 1948 has evolved. Here we remind of the purview of Articles 1 and 2, which established that: “All people are born free and equal in dignity and rights…. and every human being is entitled to all the rights and freedoms…. without discrimination because of race, color, sex, language, religion or opinion”, and also to remind of the confirmation by Articles 7 and 18 of the same Declaration.)
As well as the United Nations Declaration on the Rights of Indigenous Peoples issued in 13, September, 2007. {The the General Assembly of the United Nations drafted its draft and was discussed officially over more than 20 years before the adoption by the General Assembly in 13, September, 2007. The document emphasizes the rights of indigenous peoples to live in dignity and in the maintenance of its institutions, culture and traditions and to promote them, and to pursue their development in line with their needs and aspirations. The other United Nations bodies are concerned in the rights of indigenous peoples through agreements such as the ILO Convention No. 169 – International Labor Organization and the Convention on Biological Diversity (Article 8 j)}.
The Right of Self-Determination in the Bolshevik Revolution in the year 1917
The principle of self-determination was linked to the Bolshevik revolution in 1917 since its inception, where this application had appeared in the Declaration of Rights of the people of Russia, issued in 1917, which stated that the right to self-determination is summarized in respecting the national characteristics for every people on the basis of equality in all rights among nations with the achievement of the proletarian system which means the solidarity of all workers of the world, and also means that it is the right of every people of the oppressed peoples that live under the oppression and injustice of colonialism secession and the formation of their independent states, and the abolition of all the advantages and limitations of such national and religious character, with granting the full freedom for national minorities and racial groups in the territory of Russia (Decrees of Socialist Republic of Russia, 18: 1917) and (Imad, 37: 2002). On this basis, the right of self-determination of peoples who lived under the rule of the Tsars had applied, and among the peoples who won the right are the peoples of the Baltic states “Estonia, Lithuania, Latvia and the people of Ukraine”; the result of the application of this principle is that the proportion of the regions that have been abandoned were 62% of Russia’s population (Saad-Allah, 38: 1986). Thus, we conclude to the conclusion that the Russian Bolshevik Revolution had recognized and applied the right of self-determination since birth, and considered that it is a fundamental principle for any peaceful settlement after the end of the First World War
The right to self-determination
The observer of the Circassian Question notes that there is a wide gap between each of the “political and legal handling” concerning the Circassian Question and its main elements, as what is recognized by law (the provisions of the law and/or the Constitution of Russia), some parties try to make it empty of its content through policies of broken promises, passive connections and cultural activities limited to purely technical matters and most importantly is to institutionalize a social nature of activities, meetings, exchange of visits and various contacts which transpires premeditated intents (with premeditation) by inspiring everybody to stay in Diaspora because of its positive repercussions for them; coordination remains among them whether with the authorities that belong to the Russian State in the North Caucasus, its official parties, and the International Circassian Association on the one hand, or directly with the Russian authorities through its embassies and the Russian cultural centers linked directly to the Russian Foreign Ministry on the other hand, in order to impose a policy of fait accompli, that ignores the axiomatical in order to blur the core issues (http://www.unpo.org/article/4957).Thus, relevant international laws must be noted and understood, as a minimum, cannot accept less when dealing with everyone who wants to cooperate and to engage in dialogue, and may not waive the inalienable legitimate national rights, which must take into account the United Nations Declaration on the Rights of Indigenous Peoples (http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx).
Therefore, the logic imposes to find a working kernel to represent the partnership between the Circassians in all their whereabouts and all those who are interested in their cause, and the human rights organizations and legal organizations, in order to activate the international resolutions and regulations and to explain the Circassian Question to the world in an ample form, and in line with the right of unconditional return, compensation and self- determination, without outbidding by any party, and to work on the rejection of the possibility of waiver of any kind in regard to the Circassians’ rights. In addition to that, attention must be paid to disseminate knowledge and documented information that relate to the Circassian Question for the Circassian nation to be aware of what has happened and what will happen, and must maintain contact and communication consistently for that purpose by the use of modern communications technology (http://www.un.org/News/Press/docs/2012/gashc4051.doc.htm).
The Circassians’ Language and Culture
The language is considered a key component of the national identity and of the essential elements of the culture of any people or nation. Therefore, a close look should be considered to view the conclusion reached regarding the situation of the Adigha language, which seems that it is on its way to extinction, due to the absence of serious institutional programs or efforts to stop the regression that could eventually lead to the extermination of the language, and to be totally eliminated, because 90% of the population of the Circassian nation reside in Diaspora, their mother tongue is only used infrequently, and there is 10% only of the total census reside at homeland in the North Caucasus in six areas (enclaves), including three autonomous republics; but unfortunately the Adigha language is not placed in the level of a main language whether for educational or official use, where the Russian language is the official language, which must be used according to the applicable law in all walks of life.
The first Article of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities indicates: “States shall protect the existence and the national or ethnic, cultural,religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity” (http://www.un-documents.net/a47r135.htm).
The “presence of a safe linguistic and cultural environment is essential to the development of the individual’s personality, and no doubt that this environment will be usually available for persons belonging to the majority rather than of persons belonging to the minorities, thus the principle of equality and non-discrimination will not be sufficient alone to ensure that the minority and its members are at the same level that is available to the majority and its members. There is a need to recognize minorities preferential treatment to ensure maintaining many characteristics and peculiarities, including language, and states that got interest in the minorities subject are obliged to take positive measures to ensure the provision of a safe environment and encouraging for the minorities to develop their own languages and the development of their features and their own identity”. The European Charter has reflected in its preamble, the fact that the protection of the regional languages or the minorities’ languages in Europe contributes to the preservation of the cultural wealth and its development, which is in resultant a richness of the human heritage (http://www.hrea.org/index.php?doc_id=365).
(The scholars and specialists of international law and human rights look to the language and its protection on the basis that the protection of linguistic rights of minorities is presented in ensuring that all individuals enjoy a safe and encouraging linguistic environment. As for the second approach, it can be described as an environmental approach because it looks at the cultural diversity as a value in itself, and it is like the biological diversity that needs protection for what it entails of an intrinsic value that should be preserved. It does not appear that this approach offers anything for the recognition of linguistic rights as rights for human beings because it does not bind these rights to the individual, but by the absolute, that is the language itself.)
The “European Charter for Regional Languages or Minorities Languages (ECRML) has included a functional definition of the minority language or the regional language where the first Article stated that the regional languages or the minorities’ languages mean the languages traditionally used in a particular territory of the territories subjugated to the State by its citizens, who make up a group of lower number than the rest of the population.. And they differ from the official language / languages of this State… It is noted in this regard that the Charter refers to the existence of a territory within the state, which is a geographical area that constitutes this language as a form of expression for a number of people within, which justifies to take different measures for protection, which are those set forth in the Charter” .
(http://conventions.coe.int/Treaty/en/Treaties/Html/148.htm)
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References
ICRC (War & Law) International Humanitarian Law
https://www.icrc.org/en/war-and-law
The Natural Law
http://oll.libertyfund.org/titles/676
http://en.wikipedia.org/wiki/Natural_law
UNESCO World Heritage List
http://whc.unesco.org/en/list/900
http://whc.unesco.org/en/list/
Holocaust Restitution: German Reparations
https://www.jewishvirtuallibrary.org/jsource/Holocaust/reparations.html
http://www.bbc.com/news/world-europe-22707483
CONFERENCE ON SECURITY AND CO-OPERATION IN EUROPE FINAL ACT
http://www.osce.org/mc/39501?download=true
International Covenant on Civil and Political Rights
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Universal Recognition of Inalienable Right to Self-Determination Most Effective Way of Guaranteeing Fundamental Freedoms, Third Committee Told
http://www.un.org/press/en/2012/gashc4051.doc.htm
Declaration on the Granting of Independence to Colonial Countries and Peoples
http://www.un.org/en/decolonization/declaration.shtml
The United Nations Declaration on the Rights of Indigenous Peoples
http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement
Convention on the Prevention and Punishment of the Crime of Genocide
http://legal.un.org/avl/pdf/ha/cppcg/cppcg_e.pdf
Anti-discrimination against indigenous peoples
http://www.ohchr.org/EN/Issues/Discrimination/Pages/discrimination_indigenous.aspx
Combating Racial Discrimination
http://www.ohchr.org/EN/Issues/Discrimination/Pages/discrimination_racial.aspx
The right of Self-determination in the United Nations Resolutions and in some International Conferences
http://www.iwgia.org/human-rights/self-determination
Declaration on the Granting of Independence to Colonial Countries and Peoples
http://www.un.org/en/decolonization/declaration.shtml
Universal Recognition of Inalienable Right to Self-Determination Most Effective Way of Guaranteeing Fundamental Freedoms, Third Committee Told
http://www.un.org/press/en/2012/gashc4051.doc.htm
The United Nations INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
http://www.hrweb.org/legal/cpr.html
The right of self determination
http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
http://www.un-documents.net/a47r135.htm
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Supplements
1)The United Nations Declaration on the Rights of Indigenous Peoples
2)Convention on the Prevention and Punishment of the Crime of Genocide
3) Anti-discrimination against indigenous peoples
4) Combating Racial Discrimination
5) The right of Self-determination in the United Nations Resolutions and in some International Conferences
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1) The United Nations Declaration on the Rights of Indigenous Peoples
Declaration on the rights of indigenous peoples
The High Commissioner for Human Rights welcomes the adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly on 13 September 2007, as a triumph for justice and human dignity following more than two decades of negotiations between governments and indigenous peoples’ representatives.
The UN Declaration was adopted by a majority of 143 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine).
The Declaration establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world’s indigenous peoples. The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and indigenous peoples.
- See the resolution and declaration: Arabic | Chinese | English | French | Russian | Spanish
- See the High Commissioner for Human Rights Press Release
- See the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples Press Release
- See the General Assembly Press Release
Previous steps:
President of the General Assembly selects facilitator for the Declaration on the Rights of Indigenous Peoples. (Letter from the President of the General Assembly to Member States 6 June 2007)
8th ordinary session of the Assembly of the African Union
On 30 January 2007, the Assembly of the Union adopted a decision (Assembly/AU/ Dec. 141 (VIII)) on the UN Declaration on the rights of indigenous peoples. In its decision, the Assembly decided to maintain a united position in the negotiations on amending the Declaration and constructively work alongside other Member States of the United Nations in finding solution to the concerns of African States, amongst the most important of which are question about: a) the definition of indigenous peoples; b) self-determination; c) ownership of land and resources; d) establishment of distinct political and economic institutions; and e) national and territorial integrity.
61st session of the United Nations General Assembly
On 28 November 2006, the Third Committee of the General Assembly adopted the amendments proposed by Namibia, on behalf of the Group of African States. (A/C.3/61/L.57/Rev.1) to the draft resolution on the Declaration on the Rights of Indigenous Peoples (L.18/Rev.1) by a vote of 82 in favour, 67 against and 25 abstentions. By adopting the amendments, the third Committee decided to defer consideration and action on the Declaration and conclude its considerations before the end of the GA 61st session.
First session of the Human Rights Council
The Human Rights Council adopted the Declaration on 29 June 2006 by a vote of 30 in favour, 2 against and 12 abstentions.
See the resolution and declaration.
http://www2.ohchr.org/english/issues/indigenous/declaration.htm
2) Convention on the Prevention and Punishment of the Crime of Genocide
Convention on the Prevention and Punishment of the Crime of Genocide
Paris, 9 December 1948
| By William A. Schabas | ||
| Professor of International Law, National University of Ireland, Galway | ||
| Director of the Irish Centre for Human Rights |
| العربية | 中文 | English | Français | Русский | Español |
The text of the Convention for the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948. After obtaining the requisite twenty ratifications required by article XIII, the Convention entered into force on 12 January 1951.
The term “genocide” was first used by Raphael Lemkin in his book Axis Rule in Occupied Europe, published in late 1944. Although the word appears in the drafting history of the Charter of the International Military Tribunal, the final text of that instrument uses the cognate term “crimes against humanity” to deal with the persecution and physical extermination of national, ethnic, racial and religious minorities. Prosecutors also used the term occasionally in their submissions to the Nuremberg Tribunal, but “genocide” does not appear in the final judgment, issued on 30 September – 1 October 1946.
The failure of the International Military Tribunal to condemn what some called “peacetime genocide” prompted immediate efforts within the United Nations General Assembly. In effect, the Tribunal had confined the scope of crimes against humanity to acts perpetrated after the outbreak of war, in September 1939. At the first session of the General Assembly, in late 1946, Cuba, Panama and India presented a draft resolution that had two objectives: a declaration that genocide was a crime that could be committed in peacetime as well as in time of war, and recognition that genocide was subject to universal jurisdiction (that is, it could be prosecuted by any State, even in the absence of a territorial or personal link). General Assembly resolution 96 (I), adopted on 11 December 1946, affirmed “that genocide is a crime under international law which the civilized world condemns”. It was silent as to whether the crime could be committed in peacetime, and although it described genocide as a crime “of international concern”, it provided no clarification on the subject of jurisdiction. Resolution 96 (I) mandated the preparation of a draft convention on the crime of genocide.
Drafting of the Genocide Convention
Drafting of the Convention proceeded in three main stages. First, the United Nations Secretariat composed a draft text. Prepared with the assistance of three experts, Raphael Lemkin, Vespasian Pella and Henri Donnedieu de Vabres, it was actually a compendium of concepts meant to assist the General Assembly rather than any attempt to provide a workable instrument or to resolve major differences. Second, the Secretariat draft was reworked by an Ad Hoc Committee set up under the authority of the Economic and Social Council. Finally, the Ad Hoc Committee draft was the basis of negotiations in the Sixth Committee of the General Assembly, in late 1948, which agreed upon the final text of the Convention, submitting it for formal adoption to the plenary General Assembly.
Certain aspects of the drafting history of the Convention have figured in subsequent interpretation of some of its provisions. For example, the definition of genocide set out in article II is a much-reduced version of the text prepared by the Secretariat experts, who had divided genocide into three categories, physical, biological and cultural genocide. The Sixth Committee voted to exclude cultural genocide from the scope of the Convention, although it subsequently agreed to an exception to this general rule, allowing “forcible transfer of children from one group to another” as a punishable act. The drafters also voted down, by a very substantial margin, an amendment that sought to add a sixth punishable act to article II. It would have enabled prosecution for imposing “measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment”. References to these debates have bolstered judicial decisions that essentially exclude “ethnic cleansing” from the scope of the definition.
In addition, the drafters quite explicitly rejected universal jurisdiction for the crime. Article VI recognises only territorial jurisdiction, as well as the jurisdiction of an international criminal tribunal. There was, of course, no international criminal tribunal at the time. But when it agreed to the Convention, the General Assembly also adopted a resolution directing that work begin on a draft statute for such a court. This was the beginning of sporadic work that would eventually lead, half a century later, to the adoption of the Rome Statute of the International Criminal Court.
Over the next fifty years, the two related but distinct concepts of genocide and crimes against humanity had an uneasy relationship. Not only was genocide recognised by treaty, it came with important ancillary obligations, including a duty to prevent the crime, an obligation to enact legislation and to punish the crime, and a requirement to cooperate in extradition. Article IX gave the International Court of Justice jurisdiction over disputes between States parties concerning the interpretation and application of the Convention. Crimes against humanity were also recognised in a treaty, the Charter of the International Military Tribunal, but one that was necessarily of limited scope and whose effective application concluded when the judgment of the first Nuremberg trial was issued. The only other obligations with regard to crimes against humanity at the time existed by virtue of customary international law.
Key Provisions
The preamble makes reference to General Assembly resolution 96 (I), and re-affirms that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”. It declares that genocide has inflicted great losses on humanity at all periods of history, and that international cooperation is required in order “to liberate mankind from such an odious scourge”.
Article I provides the important clarification that genocide can be committed “in time of peace or in time of war”, distinguishing it from crimes against humanity, about which there was still, in 1948, much doubt about its application absent an armed conflict. The provision also links the concepts of prevention and punishment. Noting the connection, the International Court of Justice, in the Bosnia and Herzegovina v. Serbia and Montenegro judgment of 26 February 2007 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), said that not only was genocide prevented because of the deterrent effects of punishment, the duty to prevent genocide had its own autonomous scope which was both “normative and compelling”.
The crime of genocide is defined in article II, the provision that sits at the heart of the Convention. Genocide is a crime of intentional destruction of a national, ethnic, racial and religious group, in whole or in part. Article II lists five punishable acts of genocide. This definitional provision has stood the test of time, resisting calls for its expansion, and it is reproduced without change in such instruments as the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court. The obstinate refusal to modify the definition is not explained by some innate conservativism in the international lawmaking process. Rather, the gaps left by the somewhat narrow definition of genocide in the 1948 Convention have been filled more or less satisfactorily by the dramatic enlargement of the ambit of crimes against humanity during the 1990s. The coverage of crimes against humanity expanded to include acts perpetrated in time of peace, and to a broad range of groups, not to mention an ever-growing list of punishable acts inspired by developments in international human rights law. For much the same reason, judicial interpretation of article II has remained relatively faithful to the intent of the drafters of the provision. Thus, it remains confined to the intentional physical destruction of the group, rather than attacks on its existence involving persecution of its culture or the phenomenon of “ethnic cleansing”.
Article III lists four additional categories of the crime of genocide in addition to perpetration as such. One of these, complicity, is virtually implied in the concept of perpetration and derives from general principles of criminal law. The other three are incomplete or inchoate offences, in effect preliminary acts committed even where genocide itself does not take place. They enhance the preventive dimension of the Convention. The most controversial, “direct and public incitement”, is restricted by two adjectives so as to limit conflicts with the protection of freedom of expression.
Reprising a principal established in the Charter of the International Military Tribunal, article IV denies the defence of official capacity to Heads of State and other leading political figures. Article V requires States to enact legislation to give effect to the Convention’s provisions, and to ensure that effective penalties are provided. Many States have accordingly enacted the relevant texts of the Convention within their own penal codes, whereas others have deemed that the underlying crimes of murder and assault were already adequately addressed so that perpetrators of genocide committed on their own territory would not escape accountability.
One of the more controversial and difficult provisions says that genocide will be punished either by a competent tribunal of the territorial State, or by “such international penal tribunal as may have jurisdiction”. Little more than a decade after article VI was adopted, the Israeli courts dismissed Adolf Eichmann’s claim that the provision was an obstacle to the exercise of universal jurisdiction over genocide. It was held that despite the terms of the Convention, exercise of universal jurisdiction was authorised by customary international law.
Pursuant to article VII, States parties to the Convention are obliged to grant extradition “in accordance with their laws and treaties in force”. There is some practice to suggest that this rather vague formulation is nevertheless taken seriously, and that States consider themselves obliged to facilitate extradition when genocide charges are involved, subject to recognised principles prohibitingrefoulement where there is a real risk of flagrant human rights abuses in the receiving State.
Article VIII declares that a State party to the Convention may appeal to “competent organs” of the United Nations for them to take action pursuant to the Charter. This provision, which is largely superfluous because the right to seize the organs of the United Nations exists in any event, has apparently been invoked only once, by the United States of America in September 2004 (9 September 2004, Secretary Colin L. Powell, Testimony Before the Senate Foreign Relations Committee, United States of America).
The International Court of Justice is given jurisdiction over disputes “relating to the interpretation, application or fulfilment” of the Convention by article IX. In Bosnia and Herzegovina v. Serbia and Montenegro, the International Court of Justice confirmed that States could, in effect, commit genocide, and that the Court could adjudicate the issue pursuant to article IX. Several applications charging genocide have been filed before the Court, but only one, Bosnia and Herzegovina v. Serbia and Montenegro, has come to a final judgment.
The remaining provisions of the Convention are mainly technical in nature, and concern such issues as the authentic language versions, application to non-self-governing territories, entry into force, revision and denunciation. The Convention is silent on the subject of reservations. In its 1951 Advisory Opinion (Reservations to the Genocide Convention, I.C.J. Reports 1951, p.15), the International Court of Justice confirmed that reservations to the Conventionwere not prohibited, to the extent that they were not incompatible with the instrument’s object and purpose. Several reservations have been formulated, many of them without widespread objection. Most of the reservations have concerned the jurisdiction of the International Court of Justice set out in article IX.
Influence of the Genocide Convention
The Genocide Convention was the first human rights treaty adopted by the General Assembly of the United Nations. It focuses attention on the protection of national, racial, ethnic and religious minorities from threats to their very existence. In that sense, it sits four-square within the priorities of both the United Nations and the modern human rights movement, aimed at the eradication of racism and xenophobia. Furthermore, it stresses the role of criminal justice and accountability in the protection and promotion of human rights.
The Convention has been much criticised for its limited scope. This was really more a case of frustration with the inadequate reach of international law in dealing with mass atrocities. As history has shown, this difficulty would be addressed not by expanding the definition of genocide or by amending the Convention, but rather by an evolution in the closely related concept of crimes against humanity. Accordingly, the crime of genocide has been left alone, where it occupies a special place as “the crime of crimes”.
Case law of the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia has confirmed a restrictive approach to interpretation of the definition of genocide, resisting its extension to cases of ethnic cleansing and similar attacks upon groups aimed at their displacement rather than at their physical extermination. At the same time, in its 2007 ruling the Court found a robust concept of the prevention of genocide within the vague words of article I of the Convention. It spoke of a duty of “due diligence” imposed upon States, one that extended even to acts committed outside of their own borders by entities over which their influence may extend. This obligation to prevent genocide dovetails nicely with the responsibility to protect, recognised in 2005 by the United Nations General Assembly and endorsed the following year by the Security Council.
Unlike most of the other main human rights treaties, the Genocide Convention does not establish a monitoring mechanism. There have been periodic calls to set up a treaty body, possibly by an additional protocol to the Convention or perhaps simply by a resolution of the General Assembly. In 2004, the Secretary-General of the United Nations established the high-level position of Special Adviser on the Prevention of Genocide.
In its report to the United Nations Secretary-General in January 2005, the International Commission of Inquiry on Darfur insisted that crimes against humanity might, in some cases, be just as serious as genocide. Its comments highlighted what is often a sterile debate about whether to characterise acts as genocide or as “mere” crimes against humanity. Indeed, crimes against humanity was the label attached to the Nazi atrocities at Nuremberg, and it remains one of the “most serious crimes of concern to the international community as a whole” listed in the Rome Statute of the International Criminal Court. Nevertheless, alongside the legal definition of genocide, rooted in the 1948 Convention and confirmed in subsequent case law, there is a more popular or colloquial conception. In practice, this lay understanding of genocide is more akin to crimes against humanity, in that it comprises a broad range of mass atrocities.
Related Materials
A. Legal Instruments
London Charter of the International Military Tribunal, London, 8 August 1945.
Statute of the International Criminal Tribunal for the Former Yugoslavia, Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993) (S/25704), 3 May 1993.
Statute of the International Criminal Tribunal for Rwanda, Security Council resolution 955 (1944) of 8 November 1994.
Rome Statute of the International Criminal Court, Rome, 17 July 1998, United Nations, Treaty Series, vol. 2187, p. 3.
B. Jurisprudence
International Court of Justice, Reservations to the Genocide Convention, Advisory Opinion, I.C.J. Reports 1951, p. 15.
District Court of Jerusalem, The State of Israel v. Adolf Eichmann, Case No. 40/61, 11 December 1961.
Supreme Court of Israel, Adolf Eichmann v. The Attorney General, Criminal Appeal 336/61, 29 May 1962.
International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radislav Krstić, Case No: IT-98-33-A, 19 April 2004.
International Court of Justice, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, I.C.J. Reports 2006, p. 6.
International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007.
C. Documents
Security Council resolution 1674 (2006) of 28 April 2006, paragraph 4 (responsibility to protect).
2005 World Summit Outcome, General Assembly resolution 60/1 of 16 September 2005, paragraphs 138-139 (responsibility to protect).
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, pursuant to Security Council resolution 1564 (2004) of 18 September 2004, 25 January 2005.
Security Council resolution 1564 (2004) of 18 September 2004 (establishment of an international commission of inquiry on Darfur).
The crises in Darfur, Secretary Colin L. Powell, Testimony Before the Senate Foreign Relations Committee, United States of America, 9 September 2004, 2004/955 (Press release).
http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html
3) Anti-discrimination against indigenous peoples
Combating Discrimination against Indigenous Peoples
The world’s indigenous population has been estimated at 370 million individuals living in more than 70 countries and made up of more than 5.000 distinct peoples. Although representing 5% of the world’s population, indigenous peoples account for 15% of the world’s poorest people1. Indigenous peoples face many challenges and their human rights are frequently violated: they are denied control over their own development based on their own values, needs and priorities; they are politically under-represented and lack access to social and other services. They are often marginalized when it comes to projects affecting their lands and have been the victims of forced displacement as a result of ventures such as the exploitation of natural resources.
The United Nations has highlighted the problem of discrimination against indigenous peoples since the first Decade to Combat Racism and Racial Discrimination in 1973-1982. In 1982, the UN Working Group on Indigenous Populations articulated needs and aspirations of indigenous peoples in a draft Declaration of the Rights of Indigenous Peoples. This led to the landmark adoption of the Declaration on the Rights of Indigenous Peoples in September 2007 by the UN General Assembly. The Declaration has rapidly become a key tool for the promotion and protection of the rights of indigenous peoples.
The Committee on the Elimination of Racial Discrimination has made it clear that discrimination against indigenous peoples is racial discrimination.
Activities of the United Nations
The UN has established various mechanisms for promoting and protecting the rights of indigenous peoples that contribute to combating discrimination against them:
- The Permanent Forum on Indigenous Issues was created to advise the UN and specifically to raise awareness and promote the coordination of activities in this field.
- The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people has a mandate to gather, request, receive and exchange information on alleged violations of their human rights.
- The Expert Mechanism on the Rights of Indigenous Peoples provides the Human Rights Council with advice and thematic expertise on the rights of indigenous peoples.
The Indigenous Peoples and Minorities Unit of the Office of the High Commissioner for Human Rights is specifically tasked with advancing the rights of indigenous peoples, including by combating discrimination. It builds national capacity, including through training programmes for indigenous activists; conducts research and analysis; supports the Expert Mechanism and the Special Rapporteur; and engages with the wider community forging partnerships, raising awareness about the Declaration and other key standards and mobilizing support for anti-discrimination measures through legislation, policies and programmes. It also provides support to the Office’s presences on the ground and UN country teams in their efforts to promote indigenous peoples’ rights and eliminate discrimination.
- All figures provided by the International Fund for Agriculture and Development.
http://www.ohchr.org/EN/Issues/Discrimination/Pages/discrimination_indigenous.aspx
4) Combating Racial Discrimination
Combating Racial Discrimination
Racial and ethnic discrimination occur on a daily basis, hindering progress for millions of people around the world. From denying individuals the basic principles of equality and non-discrimination to fuelling ethnic hatred that may lead to genocide, racism and intolerance destroy lives and communities. The struggle against racism is a matter of priority for the international community and is at the heart of the work of the Office of the High Commissioner for Human Rights.
The United Nations has been concerned with this issue since its foundation and the prohibition of racial discrimination is enshrined in all core international human rights instruments. It places obligations on States and tasks them with eradicating discrimination in the public and private spheres. The principle of equality also requires States to adopt special measures to eliminate conditions which cause or help to perpetuate racial discrimination.
In 2001, the World Conference against Racism produced the most authoritative and comprehensive programme for combating racism, racial discrimination, xenophobia and related intolerance: the Durban Declaration and Programme of Action. In April 2009, the Durban Review Conference examined global progress made in overcoming racism and concluded that much remained to be achieved. Undoubtedly, the greatest accomplishment of the conference was the renewed international commitment to the anti-racism agenda.
Activities of the UN human rights office
- Supports the activities of Committee on the Elimination of Racial Discrimination (CERD). The Committee oversees implementation of the International Convention on the Elimination of All Forms of Racial Discrimination.
- Supports the Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia and related intolerance. The Special Rapporteur, who is an independent expert, publishes annual reports on racism, transmits urgent appeals and communications to States concerning cases of racism, racial discrimination, xenophobia and related intolerance and undertakes fact-finding country visits.
- Assists the Independent Expert on Minority Issues. Acknowledging that minorities in all regions of the world continue to face serious discrimination and racism, the Independent Expert works with other UN bodies and mechanisms such as the Minority Forum to address human rights violations suffered by minorities.
- Supports the Working Group of Experts on People of African Descent, which elaborates short, medium and long term proposals for the elimination of racial discrimination against People of African descent.
- Through the Anti-Discrimination Unit, furthers the struggle against racism and intolerance. The unit builds national capacity to eliminate racism through advisory services, conducts research and analysis on racism, services intergovernmental and expert mechanisms addressing the situation of victim groups, and engages with the wider community forging partnerships, raising awareness and mobilizing support for anti-discrimination measures, such as legislation, policies and programs.
http://www.ohchr.org/EN/Issues/Discrimination/Pages/discrimination_racial.aspx
5) The right of Self-determination in the United Nations Resolutions and in some International Conferences
What is most widely implied in the term self-determination is the right to participate in the democratic process of governance and to influence one’s future – politically, socially and culturally.
Self-determination embodies the right for all peoples to determine their own economic, social and cultural development. Self-determination has thus been defined by the International Court of Justice (in the West-Saharan case) as the need to pay regard to the freely expressed will of peoples.
It is important to stress that for indigenous peoples the term selfdetermination does most often NOT imply secession from the state.
The right to self-determination
The right of self-determination of peoples is a fundamental principle in international law. It is embodied in the Charter of the United Nations and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Common Article 1, paragraph 1 of these Covenants provides that:
“All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The right of self-determination has also been recognized in other international and regional human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of the African Charter of Human and Peoples’ Rights as well as the Declaration on the Granting of Independence to Colonial Territories and Peoples. It has been endorsed by the International Court of Justice. Furthermore, the scope and content of the right of self- determination has been elaborated upon by the United Nations Human Rights Committee and Committee on the Elimination of Racial Discrimination as well as international jurists and human rights experts.
To read more about Self-determination click on one or more of the links below (PDF and Word documents).
- Self Determination – Indigenous Affairs Theme Issue (pdf)
- Self-determination and the nation state – Baguio Declaration
- Implementation of the Right of Self-Determination of Indigenous Peoples within the Framework of Human Security, by John Henriksen
- Indigenous Peoples Self-determination and the Nation State in Asia, by the Cordillera Peoples Alliance
- Definition and delimitation of the indigenous peoples of Asia, by Tapan Bose
http://www.iwgia.org/human-rights/self-determination
Declaration on the Granting of Independence to Colonial Countries and Peoples
Adopted by General Assembly resolution 1514 (XV) of 14 December 1960
The General Assembly,
Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom,
Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples, and of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,
Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence,
A ware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace,
Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self-Governing Territories,
Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,
Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace,
Affirming that peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law,
Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious crises, an end must be put to colonialism and all practices of segregation and discrimination associated therewith,
Welcoming the emergence in recent years of a large number of dependent territories into freedom and independence, and recognizing the increasingly powerful trends towards freedom in such territories which have not yet attained independence,
Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory,
Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations;
And to this end Declares that:
1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.
4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.
http://www.un.org/en/decolonization/declaration.shtml
| Department of Public Information • News and Media Division • New York |
Sixty-seventh General Assembly
Third Committee
30th & 31st Meeting (AM & PM)
UNIVERSAL RECOGNITION OF INALIENABLE RIGHT TO SELF-DETERMINATION MOST EFFECTIVE
WAY OF GUARANTEEING FUNDAMENTAL FREEDOMS, THIRD COMMITTEE TOLD
Hears from Some 35 Speakers in Day-Long Debate,
With Focus on Eliminating Racism, Self-Determination, Human Rights Protections
Universal recognition of the inalienable right to self-determination was the most effective way the global community could guarantee protection of fundamental freedoms, the Third Committee (Social, Humanitarian and Cultural) was told today, as it concluded discussion on several human rights issues.
“Whether this right is taken away by military intervention, aggression, occupation, or even exploitation, the world cannot condone its deprivation from any peoples in any region,” the Maldives representative said.
All States facing questions of self-determination must include broader ethnic and linguistic groups in decision-making processes, said delegates, as the Committee heard from some 35 speakers in a day-long debate that concluded its consideration of the elimination of racism, and the right of peoples to self-determination, then moved on to consideration of human rights protections.
The representative from the youngest Member State, South Sudan, said his people’s experiences were “an excellent lesson for the international community” on matters of racism and self-determination, since South Sudanese political parties and personalities had not been consulted in discussions on independence from colonial Britain, which led to distrust and decades of war.
The racial and religious discrimination faced by South Sudan for more than six decades should not have happened, with the Charter and the watchful eyes of the United Nations to guard against such indignities, he said. Nonetheless, despite all the hardship inflicted, South Sudan, which finally became a Republic in 2011, would like to put suffering behind, and seek a good relationship with Sudan.
During the discussion, a number of countries supported realization of self-determination for the Palestinian people, calling on the Security Council to recommend that the General Assembly accept the Palestinian application for United Nations membership and heavily criticizing Israel’s policies.
Malaysia’s representative said he had personally witnessed the suffering of Palestinians under Israel’s military occupation and blockade, which destroyed the economy and minimized employment opportunities in the Occupied Palestinian Territories. “The sooner the solution is found, the sooner members of both sides can find themselves living in peace and security,” he said. “The only option is to make the two-State solution, based on 1967 borders with East Jerusalem as capital of Palestine, a reality,” he said.
The Palestinian observer said Israel had violently withheld the inherent right to self-determination of the Palestinian people, but those people remained committed to peace and had not forsaken their legitimate national aspirations. Israel should not be allowed to continue obstructing and dictating the terms of the Palestinian exercise of the right to self-determination, she said.
Speaking in right of reply, Israel’s representative said that it was committed to advancing the self-determination of Palestinians and to a two-State solution. The Palestinian delegate, among others, had neglected to mention that Israel’s Prime Minister had offered to negotiate with the Palestinian Authority President without preconditions but had been rebuffed “time and again”. If the Palestinian delegate cared about self-determination, she would stop berating his country and start working with it, he said.
In the afternoon, the Committee also resumed its discussion on the promotion and protection of human rights, in which most delegates vowed to continue engaging in the Human Rights Council’s Universal Periodic Review, a cornerstone of the international human rights architecture.
During the debate, the representative of Nigeria said the most severe human rights problems in the world today were caused by poverty, discrimination, conflicts and diseases. Political instability and conflicts, particularly in Africa, were intrinsically linked to economic development, he said, calling for an increase in development and financial assistance to realize the Millennium Development Goals.
The representative of Malaysia, speaking on behalf of the Association of Southeast Asian Nations (ASEAN), said the work of the international community in promotion and protection of human rights should take into account principles of respect for national sovereignty, territorial integrity and non-interference in the internal affairs of States. “Freedom, progress and national stability are promoted by a balance between the rights of the individual and those of the community, through which many individual rights are realized, as provided for in the Universal Declaration of Human Rights,” he said.
The European Union’s representative said 2012 had been a year in which the long path of transition in many countries continued worldwide. “There may be temptations, once power is gained, to refuse to grant to some the full enjoyment of all human rights. But, democracy can only flourish when it gives its entire people, whatever their gender, religion, disability, language or ethnic identity, an equal say and equal rights, guaranteed in law and practice,” he said.
Also speaking today in the debate on racism and self-determination were the representatives of Kyrgyzstan, Iran, Albania, Malaysia, Bolivia, Norway, Syria, India, Costa Rica, Armenia, Iceland, Egypt and Azerbaijan.
Also speaking in exercise of the right of reply were the representatives of Armenia, Pakistan, Syria, India and Azerbaijan, as well as a representative of the Permanent Observer Mission of Palestine.
In the debate on the protection and promotion of human rights the Secretary-General of the Ministry for Human Rights of Burkina Faso spoke, as did the representatives of India, United Republic of Tanzania, Morocco, Viet Nam, Ukraine, Latvia, Barbados (on behalf of Caribbean Community (CARICOM)), Chile (on behalf of the Community of Latin American and Caribbean States), Brazil (on behalf of Southern Common Market (MERCOSUR)), Liechtenstein, Malaysia, Venezuela, United States, Australia, Japan and Lao People’s Democratic Republic.
Exercising the right of reply were the representatives of China, Russian Federation, Democratic People’s Republic of Korea, Cuba, Bahrain, Viet Nam and Japan.
The Committee will reconvene at 10 a.m. Wednesday, 7 November, to begin its consideration of refugees and hold a dialogue with the Office of the United Nations High Commissioner for Refugees.
Background
The Third Committee (Social, Humanitarian and Cultural) met today to continue its consideration of elimination of racism, racial discrimination and related intolerance as well as the right of peoples to self-determination, and to continue its discussion of promotion and protection of human rights.
Statements on Human Rights
http://www.un.org/News/Press/docs/2012/gashc4051.doc.htm
The United Nations
INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS
PREAMBLE
The States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person,
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,
Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,
Agree upon the following articles:
PART 1
Article 1
- All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
- The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
- Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps. in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
- Each State Party to the present Covenant undertakes:
- To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; to ensure that any person claiming such a remedy shall have his rights thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
- To ensure that the competent authorities shall enforce such remedies when granted.
PART II
Article 2
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
Article 4
- In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
- No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
- Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
- Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
- There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
- In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
- When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
- Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
- Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
- Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Article 5
PART III
Article 6
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Article 8
- No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
- No one shall be held in servitude.
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- No one shall be required to perform forced or compulsory labour;
- Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;
- For the purpose of this paragraph the term “forced or compulsory labour” shall not include:
- Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
- Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;
- Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
- Any work or service which forms part of normal civil obligations.
- Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
- Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
- Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
- Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
- Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
- All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
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- Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
- Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
- The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
Article 9
Article 10
Article 11
No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.
Article 12
- Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
- Everyone shall be free to leave any country, including his own.
- The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
- No one shall be arbitrarily deprived of the right to enter his own country.
Article 13
An alien lawfully in the territory of a State Party to the present Covenant may expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
Article 14
- All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
- Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
- In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
- To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
- To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
- To be tried without undue delay;
- To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
- To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
- Not to be compelled to testify against himself or to confess guilt.
- In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
- Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
- When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
- No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Article 15
- No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. if, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
- Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.
Article 16
Everyone shall have the right to recognition everywhere as a person before the law.
Article 17
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
- Everyone has the right to the protection of the law against such interference or attacks.
Article 18
- Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
- The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Article 19
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
- For respect of the rights or reputations of others;
- For the protection of national security or of public order (ordre public), or of public health or morals.
Article 20
- Any propaganda for war shall be prohibited by law.
- Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Article 22
- Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
- No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
- Nothing in this article shall authorize States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.
Article 23
- The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
- The right of men and women of marriageable age to marry and to found a family shall be recognized.
- No marriage shall be entered into without the free and full consent of the intending spouses.
- States Parties to the present Covenant shall take appropriate steps to ensure equally of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
Article 24
- Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
- Every child shall be registered immediately after birth and shall have a name.
- Every child has the right to acquire a nationality.
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
- To take part in the conduct of public affairs, directly or through freely chosen representatives;
- To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
- To have access, on general terms of equality, to public service in his country.
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
PART IV
Article 28
- There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided.
- The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.
- The members of the Committee shall be elected and shall serve in their personal capacity.
Article 29
- The members of the Committee shall be elected by secret ballot from a list of persons possessing the qualifications prescribed in article 28 and nominated for the purpose by the States Parties to the present Covenant.
- Each State Party to the present Covenant may nominate not more than two persons. These persons shall be nationals of the nominating State.
- A person shall be eligible for renomination.
Article 30
- The initial election shall be held no later than six months after the date of the entry into force of the present Covenant.
- At least four months before the date of each election to the Committee, other than an election to fill a vacancy declared in accordance with article 34, the Secretary-General of the United Nations shall address a written invitation to the States Parties to the present Covenant to submit their nominations for membership of the Committee within three months.
- The Secretary-General of the United Nations shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties to the present Covenant no later than one month before the date of each election.
- Elections of the members of the Committee shall be held at a meeting of the States Parties to the present Covenant convened by the Secretary-General of the United Nations at the Headquarters of the United Nations. At that meeting, for which two thirds of the States Parties to the present Covenant shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.
Article 31
- The Committee may not include more than one national of the same State.
- In the election of the committee, consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.
Article 32
- The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these nine members shall be chosen by lot by the chairman of the meeting referred to in article 30, paragraph 4.
- Elections at the expiry of office shall be held in accordance with the preceding articles of this part of the present Covenant.
Article 33
- If, in the unanimous opinion of the other members, a member of the Committee has ceased to carry out his functions for any cause other than absence of a temporary character, the Chairman of the Committee shall notify the Secretary-General of the United Nations, who shall then declare the seat of that member to be vacant.
- In the event of the death or the resignation of a member of the Committee, the Chairman shall immediately notify the Secretary-General of the United Nations, who shall declare the seat vacant from the date of death or the date on which the resignation takes effect.
Article 34
- When a vacancy is declared in accordance with article 33 and if the term of office of the member to be replaced does not expire within six months of the declaration of the vacancy, the Secretary-General of the United Nations shall notify each of the States Parties to the present Covenant, which may within two months submit nominations in accordance with article 29 for the purpose of filling the vacancy.
- The Secretary-General of the United Nations shall prepare a list in alphabetical order of the persons thus nominated and shall submit it to the States Parties to the present Covenant. The election to fill the vacancy shall then take place in accordance with the relevant provisions of this part of the present Covenant.
- A member of the Committee elected to fill a vacancy declared in accordance with article 33 shall hold office for the remainder of the term of the member who vacated the seat on the Committee under the provisions of that article.
Article 35
The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee’s responsibilities.
Article 36
The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant.
Article 37
- The Secretary-General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations.
- After its initial meeting, the Committee shall meet at such time as shall be provided in its rules of procedure.
- The Committee shall normally meet at the Headquarters of the United Nations or at the United Nations Office at Geneva.
Article 38
Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously.
Article 39
- The Committee shall elect its officers for a term of two years. They may be re-elected.
- The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:
- Twelve members shall constitute a quorum;
- Decisions of the committee shall be made by a majority vote of the members present.
Article 40
- The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights:
- Within one year of the entry into force of the present Covenant for the States Parties concerned;
- Thereafter whenever the Committee so requests.
- All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant.
- The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence.
- The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant.
- The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article.
Article 41
- A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:
- If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication, the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter.
- If the matter in not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State.
- The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged.
- The Committee shall hold closed meetings when examining communications under this article.
- Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant.
- In any matter referred to it, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information.
- The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing.
- The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:
- If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;
- If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.
In every matter, the report shall be communicated to the States Parties concerned.
- The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.
Article 42
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- If a matter referred to the Committee in accordance with article 41 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission). The good offices of the Commission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant;
- The Commission shall consist of five persons acceptable to the States Parties concerned. If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its members.
- The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties concerned, or of a State not party to the present Covenant, or of a State Party which has not made a declaration under Article 41.
- The Commission shall elect its own Chairman and adopt its own rules of procedure.
- The meetings of the Commission shall normally be held at the Headquarters of the United Nations or at the United Nations Office at Geneva. However, they may be held at such other convenient places as the Commission may determine in consultation with the Secretary-General of the United Nations and the States Parties concerned.
- The secretariat provided in accordance with article 36 shall also service the commissions appointed under this article.
- The information received and collated by the Committee shall be made available to the Commission and the Commission may call upon the States Parties concerned to supply any other relevant information.
- When the Commission has fully considered the matter, but in any event not later than twelve months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned:
- If the Commission is unable to complete its consideration of the matter within twelve months, it shall confine its report to a brief statement of the status of its consideration of the matter.
- If an amicable solution to the matter on the basis of respect for human rights as recognized in the present Covenant is reached, the Commission shall confine its report to a brief statement of the facts and of the solution reached;
- If a solution within the terms of subparagraph (b) is not reached, the Commission’s report shall embody its findings on all questions of fact relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned;
- If the Commission’s report is submitted under subparagraph (c), the States Parties concerned shall, within three months of the receipt of the report, notify the Chairman of the Committee whether or not they accept the contents of the report of the Commission.
- The provisions of this article are without prejudice to the responsibilities of the Committee under article 41.
- The States Parties concerned shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-General of the United Nations.
- The Secretary-General of the United Nations shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties concerned, in accordance with paragraph 9 of this article.
Article 43
The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 42, shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.
Article 44
The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.
Article 45
The Committee shall submit to the General Assembly of the United Nations, through the Economic and Social council, an annual report on its activities.
PART V
Article 46
Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of specialized agencies in regard to the matters dealt with in the present Covenant.
Article 47
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.
PART VI
Article 48
- The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to the present Covenant.
- The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
- The present Covenant shall be open to accession by any State referred to in paragraph 1 of this article.
- Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
- The Secretary-General of the United Nations shall inform all States which have signed this Covenant or acceded to it of the deposit of each instrument of ratification or accession.
Article 49
- The present Covenant shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession.
- For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.
Article 50
The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.
Article 51
- Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General of the United Nations shall thereupon communicate any proposed amendments to the States Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least on third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.
- Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the State Parties to the present Covenant in accordance with their respective constitutional processes.
- When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.
Article 52
Irrespective of the notifications made under article 48, paragraph 5, the Secretary-General of the United Nations shall inform all States referred to in paragraph 1 of the same article of the following particulars:
- Signatures, ratifications and accessions under article 48;
- The date of the entry into force of the present Covenant under article 49 and the date of the entry into force of any amendments under article 51.
Article 53
- The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
- The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 48.
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