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General Principles Relevant to International Law

Upon becoming parties to a human rights treaty, states must comply with the obligations enshrined therein. Moreover, when applying human rights treaties, it is important to take into account the existence of general principles which are embedded in international human rights law and which guide their application. It is relevant to attempt to define a general principle by distinguishing it from a human right. In 19 ! the U" #ommission on $uman %ights put forth a definition &%esolution '1(1)*, +ecember 19 !,, stating that a human right musta, .e consistent with the existing body of international human rights law/ b, .e of fundamental character and derive from the inherent dignity and worth of the human person/ c, .e sufficiently precise to give rise to identifiable and practicable rights and obligations/ d, 0rovide, where appropriate, realistic and effective implementation machinery, including reporting systems/ and e, 1ttract broad international support. 2eneral principles are not human rights but there is a degree of overlap as some general principles, such as the principle of non3discrimination and non bis in idem have gradually evolved into substantive human rights by being sufficiently precise and fulfilling the conditions described above. There is no consensus on general principles, but it is proposed that, to qualify as such, a principle must be: a, Universally or in a specific 4urisdiction, generally accepted/ b, +istinct from human rights to the effect that they are insufficiently precise to give rise to legally identifiable and practicable rights and obligations/ c, #onsidered either to limit the margin of appreciation of a state or to guide it when examining or evaluating the human right&s, of an individual/ and d, %elevant for the individual en4oyment of human rights. 2eneral principles form, as such, a substratum of law, which helps in interpreting human rights law and international law in general. 5n the one hand, the principles provide guidelines for 4udges in deciding individual cases/ on the other, they limit the discretionary power of 4udges and the executive power in deciding individual cases. 1s such, general principles have an important place in the application of human rights.

! The rule of law 6he rule of law is a cornerstone of the concept of human rights and democracy. 6here is, however, no international consensus on its meaning. +ifferent traditions in the 1nglo37axon world &rule of law, and in #ontinental 8urope &lEtat de droit, Rechtsstaat, Stato del diritto, attach slightly different interpretations to the term. In official documents the concept is not always explicitly defined. 1 strong consensus does, however, exist on the rule of law as a fundamental principle. 6he rule of law implies that rights must be protected by law, independently of the will of the ruler. Individual rights and freedoms are to be protected against any manifestation of arbitrary power by public authorities. 6he principle of the 9rule of law: is contained in the 0reamble to the #harter of the United "ations, which states its ob4ective[T]o save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights [?] in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and res ect for the obligations arising from international law can be maintained. 6he International #ommission of ;urists has proposed the following definition- 96he rule of law is more than the formal use of legal instruments, it is also the %ule of ;ustice and of 0rotection for all members of society against excessive governmental power.: In sum, the rule of law means that law shall condition a government:s exercise of power and that sub4ects or citi<ens are not to be exposed to the arbitrary will of their leaders.

1. $I765%I#1= +8>8=50M8"6 1s the rule of law is an old concept, we must go back to its origins in Medieval 8ngland to understand its development. 1fter defeating the last 1nglo37axon ?ing $arold II &1*!!,, @illiam the #onAueror established a central administration. 6wo factors were characteristic of the political institutions in 8ngland at the time- the undisputed supremacy of the central government throughout the country, and the rule or supremacy of the law. 6he supremacy of the central government was embodied in the power of the ?ing. $e was the source of all legislation, while the administration of 4ustice and the 4urisdiction were his privileges. Bet, this did not mean that the ?ing stood above the law/ according to a widely held belief in 8ngland 3 and other countries 3 in the Middle 1ges, the world was governed by rules deriving either from what was considered divine right or from what was popularly considered to be right. 6hus, the ?ing was sub4ect to the law, because it was the law that had first made him ?ing &Auia lex facit regem,. 6his is what was originally meant by the rule of law. 0artly because of the feeling among the 8nglish people that some sort of 9higher: law existed and the early development of parliament, and partly because of the efforts of the nobility to secure its ancient rights against the ?ing, attempts to establish absolute authority failed. 6he common law courts and parliament, which became increasingly powerful, not only preserved the existing order of 4ustice but also succeeded in giving it a meaning. 6his reflected the changes taking place in society and the people:s value systems. 6his development marked the beginning of the rule of law, which could be reconciled with the doctrine of parliamentary supremacy &originated in the seventeenth century dispute with the #rown,.

1 similar development took place on the 8uropean continent where, since the time of the Crankish ?ingdom &around D** 1.+., the principles of l:8tat de +roit &%echtsstaat in 2erman, were developed. 6he principle implied that the government could only enact a law or binding regulation on the basis of what is considered right and 4ust. In a substantive sense, the principle implied that the standards and acts of the government must be directed towards the realisation of 4ustice. 6his principle reAuired not only legislation based on the best possible balance of interests, but also the recognition of freedoms and the existence of an independent 4udiciary fit to check governmental powers.

). +B"1MI# #5"#806 6he meaning of the rule of law, since its rise in the early Middle 1ges, has gone through a process of change, which runs roughly parallel to evolving views on the role and ob4ectives of a national government. It is a dynamic concept not only in this respect. 6he rule of law does not stand for an abstract, unchanging set of unambiguous rules but rather for a range of principles which have to be applied and developed on a case3by3 case basis. 6he rule of law should thus be seen as a whole set of legal standards by which governments and sub4ects are bound. 6he exact content of these standards is determined by several factors, including public opinion, political consciousness and the prevailing sense of 4ustice. 6he fact that the rule of law is constantly changing does not mean that guidelines cannot be distilled from it. 5n the contrary, it is, to some extent, possible to identify the rules and principles that follow from the rule of law at a certain point in time. .asically, some principles have been part of the rule of law from its origin. 6hese are principles of a universal nature, which have defied change. 7ome important ones, which have in time developed into substantive rights, are the following

"o one may be punished except for a distinct breach of an existing law established in the ordinary legal manner before the ordinary courts of the country &nullum crimen, nulla poena sine praevia lege,. 6his principle is enshrined in several national constitutions, and a number of international instruments. 7ee, e.g., 1rticle E&1, 8#$% and 1rticles )) and )F %ome 7tatute of the International #riminal #ourt. 1ll individuals are 9innocent until proven otherwise: &presumption of innocence,. 6his principle was included already in 1rticle 9 +Gclaration des +roits de l:$omme et du #itoyen and it is included in several human rights instruments, such as 1rticle !&1, 8#$%. 8very human being should be treated eAually by the same courts and should have the same rights. 6his eAuality is not absolute since certain professional groups, such as the military, lawyers and civil servants, are sometimes 4udged in their professional Auality by special courts. 6his practice is not contrary to the rule of law/ within these groups, eAuality before the law applies to the full.

2enerally speaking, the view on the rule of law has gradually shifted from a source of rights for the individual to a means of protection against excessive governmental power. 5ther rules and principles derived from the rule of law are

"o arbitrary power. 6his principle includes the separation of powers. It does not only apply in relations between the legislature, the executive and the 4udiciary. 1s the state regulates national life in many ways, discretionary authority is inevitable. Bet, this does not mean pure arbitrary power, i.e., power exercised by agents responsible to no one and

sub4ect to no control. 6he way power and authority are delegated to lower state institutions has to be controlled and the way in which those institutions use their power has to be accounted for. #learly, a 9carte blanche: delegation goes against the rule of law. Independence of the 4udiciary. 6he independence of the 4udiciary is closely linked to the principle above. Independence of the 4udiciary implies the control of legislation and administration by an independent 4udiciary, and the independence of the legal profession. Cundamental rights and freedoms can best be guaranteed in a society where the 4udiciary and the legal profession en4oy freedom from interference and pressure, and where every person is entitled to a fair and public hearing by a competent, independent and impartial tribunal.

6he rule of law has come to be regarded as the mark of a truly free society. 1lthough its precise meaning differs from country to country, and from one epoch to another, it is always identified with the liberty of the individual. 6he rule of law aims to maintain a delicate balance between the opposite notions of individual liberty and public order. 8very state has to face the challenge of reconciling human rights with the reAuirements of public interest. 6his can only be accomplished through independent courts, charged with guarding the balance of power between the citi<en and the state. 6he most powerful entity in any community, and hence the greatest potential violator of human rights, is the state itself through its public authorities, its officials and agents. 1ny democratic society needs laws to protect the rights and freedoms of individuals, as laid down in constitutions and treaties or institutionalised as commonlaw. 6here should be laws enabling individuals to obtain a remedy for any violation, and there should be a legal system that ensures that those remedies will be enforced, especially against the state itself. In recent years new standards have been developed to strengthen the role of the rule of law, in addition to those already incorporated in international conventions &e.g., 1rticle 1' I##0% and 1rticle !&1, 8#$%,. 6he International #ommission of ;urists has played a significant role in the promotion of these standards. Under the framework of the U", important standards include the U" .asic 0rinciples on the Independence of the ;udiciary/ the 0rocedures for the 8ffective Implementation of the .asic 0rinciples on the Independence of the ;udiciary/ and the U" .asic 0rinciples on the %ole of =awyers. Under the framework of the 57#8, an important document on the rule of law is the document of the #openhagen Meeting of the #onference of the $uman +imension of the #7#8 &199*,. 6his document sets out that states are determined to support and advance those principles that form the rule of law and that the %ule of =aw does not mean 9merely a formal legality HIJ but 4ustice based on the recognition of the acceptance of the supreme value of the human personality: and 9reaffirmHsJ that democracy is an inherent element of the %ule of =aw.:

"! The principle of equality and non#discrimination in the en$oyment of human rights 6he principle of non3discrimination is of the utmost importance in international law. >arious formulations of prohibition of discrimination are contained in, for example, the U" #harter &1rticles 1&F,, 1F&1,&b,, DD&c, and E!,, the Universal +eclaration of $uman %ights &1rticles ) and E,, the I##0% &1rticles )&1, and )!, and the #%# &1rticle ),. 7ome instruments are expressly aimed at addressing specific prohibited grounds for discrimination, such as the International #onvention on the 8limination of all Corms of %acial +iscrimination &#8%+, and the #onvention on the 8limination of all Corms of +iscrimination against @omen &#8+1@,.

5ther instruments aim at addressing the prohibition of discrimination in the exercise of one or several rights, such as I=5 111, which refers to discrimination in the exercise of the right to work &employment and occupation,, and the U"87#5 #onvention against +iscrimination in 8ducation. 1 definition of discrimination is included in 1rticle 1&1, #8%+, 1rticle 1 #8+1@, 1rticle 1&1, I=5 111, 1rticle 1 #%0+ and 1rticle 1&1, #onvention against +iscrimination in 8ducation. Crom these different definitions it is possible to conclude that 9discrimination: refers to any distinction, exclusion or preference, be it in law or in administrative practices or in practical relationships, between persons or groups of persons, made on the basis of race, disability, colour, sex, religion, political opinion, nationality or social origin, which have the effect of nullifying or impairing the eAual en4oyment of any human rights. 5ther grounds of prohibited discrimination, which are recognised to an increasing degree, are age, sexual orientation and gender identity. In general, human rights instruments reAuire states to respect human rights and ensure that all persons within their territory, and sub4ect to their 4urisdiction, en4oy the guaranteed rights without distinction of any kind. It should be noted that in exceptional circumstances the state may derogate from some human rights provisions/ such measures may, however, never be discriminatory. It is well established in international human rights law that not all differences in treatment constitute discrimination. 6his is summed up by the axiom, 9persons who are eAual should be treated eAually and those who are different should be treated differently: &9in proportion to the ineAuality:,. 1s indicated by the $uman %ights #ommittee, 9the en4oyment of rights and freedoms on an eAual footing HIJ does not mean identical treatment in every instance.: $ence, there may be situations in which different treatment is 4ustified. 1lthough not all differences in treatment are discriminatory, international law has established criteria for determining when a distinction amounts to discrimination. In a nutshell, a distinction is compatible with the principle of eAuality when it has an ob4ective and reasonable 4ustification, pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought. 6hese reAuirements have been stressed by some of the ma4or human rights supervisory bodies. Cor example, in the words of the $uman %ights #ommittee!ot ever" differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a ur ose which is legitimate under the #ovenant$ %&eneral #omment '()$ 1s the 8uropean #ourt of $uman %ights has stated*ccording to the #ourts established case+law, a distinction is discriminator" if it ,has no objective and reasonable justification, that is, if it does not ursue a ,legitimate aim or if there is not a ,reasonable relationshi of ro ortionalit" between the means em lo"ed and the aim sought to be realised %-arc./ v$ 0elgium)$ In the same vein, the Inter31merican #ourt of $uman %ights has held that*ccordingl", no discrimination e/ists if the difference in treatment has a legitimate ur ose and if it does not lead to situations which are contrar" to justice, to reason or to the nature of things$ 1t follows that there would be no discrimination in differences in treatment of individuals b" a state when the classifications selected are based on substantial factual differences and there e/ists a reasonable relationshi of ro ortionalit" between these differences and the aims of the legal rule under review$ These aims ma" not be unjust or unreasonable, that is, the" ma" not be arbitrar", ca ricious, des otic or in conflict with the essential oneness and dignit" of human.ind

%*dvisor" 2 inion !o$ 3, ,4ro osed amendments to the naturalisation rovisions of the #onstitution of #osta Rica, 2#+35(3 of '6 7anuar" '6(3, ara$ 89)$ 6hus, differences in treatment &distinction, exclusion, restriction or preference, that comply with the criteria mentioned above are not discriminatory and do not infringe the principle of eAuality and non3discrimination. Curthermore, certain preferential treatment, such as the special treatment aimed at protecting pregnant women or disabled persons, is not considered discrimination as the purpose of the preferential treatment is to remedy inherent ineAualities. 7imilarly, affirmative action, defined as measures necessary 9to diminish or eliminate conditions which cause or help to perpetuate discrimination: aimed to benefit historically disadvantaged groups within society, must not be considered 9discrimination:

1. +I%8#6 1"+ I"+I%8#6 +I7#%IMI"16I5" 1ny discrimination with the 9purpose: or the 9effect: of nullifying or impairing the eAual en4oyment or exercise of rights is prohibited under the non3discrimination provisions. In other words, the principle of non3discrimination prohibits 9direct: and 9indirect: forms of discrimination. 6he concept of 9indirect: discrimination refers to an apparently 9neutral: law, practice or criterion, which has been applied eAually to everyone but the result of which favours one group over a more disadvantaged group. In determining the existence of indirect discrimination, it is not relevant whether or not there was intent to discriminate on any of the prohibited grounds. %ather, it is the conseAuence or effect of a law or action which determines whether it is discriminatory or not.

). >U="8%1.=8 2%5U07 1"+ "5"3+I7#%IMI"16I5" 6he principle of non3discrimination demands that particular attention be given to vulnerable groups and individuals from such groups. In fact, the victims of discrimination tend to be the most disadvantaged groups of society, such as women, minorities, indigenous peoples, refugees and disabled persons. 7tates should identify the persons or groups of persons who are most vulnerable and disadvantaged with regard to full en4oyment of all human rights and take measures to prevent any adverse affects on them. &Cor an analysis on vulnerable groups see 0art I>,.

F.1CCI%M16I>8 1#6I5" 5% 0%568#6I>8 M817U%87 C5% 6$8 M576 >U="8%1.=8 2%5U07 In some circumstances the principle of non3discrimination reAuires states to take affirmative action or protective measures to prevent or compensate for structural disadvantages. 6hese measures entail special preferences, which should not be considered discriminatory because they are aimed at addressing structural disadvantages or protecting particularly vulnerable groups, or to encourage eAual participation.

6hrough its 2eneral #omments, the $uman %ights #ommittee often refers to the reAuired affirmative action and has adopted a definition in 2eneral #omment 1 , para. 1*, which reads as follows6he #ommittee also wishes to point out that the principle of eAuality sometimes reAuires states parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the #ovenant. Cor example, in a state where the general conditions of a certain part of the population prevent or impair their en4oyment of human rights, the state should take specific action to correct those conditions. 7uch action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. $owever, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the #ovenant. 1ffirmative action aims to remove obstacles to the advancement of vulnerable groups. It is important to stress that affirmative action is of a temporary nature/ it should not continue after its ob4ectives have been achieved.

'. 8+U#16I5" 65 #5M.16 +I7#%IMI"16I5" 8ducation plays a pivotal role in the struggle against discrimination. 8ducational campaigns are of key importance for combating stereotypes and promoting tolerance. 1s disadvantaged groups are often ignorant of the law and fear retaliation or intimidation, education and awareness of their rights and the mechanisms for redress enhance their protection.

1! S:442RT 2; *;;1R-*T1<E *#T12! -E*S:RES The mechanism of ,affirmative action is a vital tool within human rights law in tac.ling some of the historical grievances that under in inequalit" in modern societies$ The rinci le can be understood as an elevator mechanism designed to raise a articular segment of the o ulation that is at level =ero %in terms of quantifiable indicators, such as access to services, em lo"ment within the rivate and ublic sector, olitical artici ation, level of education and access to education, and other civil, olitical, economic, social and cultural rights) to the level that the rest of the o ulation enjo"s %level one)$ The causes for this difference between the target grou and the rest of the o ulation, i$e$ ,the ga , is often the result of ersistent historical discrimination$ >owever, rather than a revision of histor", which is undesirable, an elevator mechanism acce ts the need for the focusing of s ecific measures aimed at the alleviation of a 4articular disadvantage faced b" a s ecific grou $ #ruciall", however, the mechanism can onl" be effective if it raises the o ulation to level one, and not to a level higher than the rest of the o ulation, for it would then discriminate unjustl" against that ortion of the o ulation$ The conce t of affirmative action has been defined as ,a coherent ac.age of measures, of a tem orar" character, aimed s ecificall" at correcting the osition of members of a target grou in one or more as ects of their social life, in order to obtain effective equalit" %0ossu"t, :! ?oc$ E5#!$35Sub$@5 @AA'5'8)$

1n determining when a articular segment of o ulation is entitled to a ac.age of s ecial measures, it is im ortant to stress em irical grounds$ The test to e/amine the claim for affirmative action should be determined b" at least two factorsB i) the e/istence of determinable and ersistent status of inequalit"C and ii) effective articulation of the legal right to s ecial measures b" re resentatives + though the latter argument is subservient to the former$ 1n addition, grou s, or individuals belonging to such grou s that choose to assimilate should be enabled a waiver of this right$ 2f course there are numerous other issues that are relevant to the determination of affirmative action, including the fact that such measures often create new disadvantaged grou s$ 0esides, beneficiaries of such action often e/ ress the sentiment that the erce tion of availing of s ecial measures often belittles their own achievements$ 1nstead, the" are reduced in ublic erce tion to being no more than to.en beneficiaries of olic" rather than grants on meritorious bases$ The justification for s ecial measures however outweighs these considerations$ ;irst and foremost, it remains an admittedl" im erfect legal guarantee through which historical ower relationshi s within a s"stem are sought to be balanced$ Second, such measures attem t to remed" social and structural discrimination$ Thus, while not necessaril" tac.ling e/isting rejudice, the" see. to create mechanisms combating structural and institutional imbalances$ Third, it attem ts the creation of diversit" or ro ortional grou re resentation, b" fostering new as irations and e/ ectations within grou s with a view towards fuller artici ation in all as ects of ublic life$ * fourth argument in favour of affirmative action is the social utilit" argument stressing that societ", as a whole, is better off with all its com onents artici ating in rocesses that affect them$ Related to this is the idea that a level of interaction between different grou s in a societ" can calm otential future social unrest b" enabling means other than violence for discussions about grievances$ ;inall", if the ublic affairs of the state are more inclusive there is a greater li.elihood that it will develo a luralistic attitude that enables greater harmon" and equalit" between grou s$ 7oshua #astellino