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LECTURE NOTES 2

Lecture 2

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LECTURE NOTES 2

Lecture 2

Uploaded by

alexandernelsonchanda01
Copyright
© © All Rights Reserved
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LECTURE NOTES

BENEFICIARIES AND DUTY-HOLDERS OF HUMAN RIGHTS

LECTURER: CHALI M. MPOROKOSO

1. Introduction to Human Rights: Beneficiaries and Duty-Holders

• Traditionally, human rights emphasize the rights of the individual and the obligations
of the State.
• The State is the primary duty-holder responsible for ensuring respect, protection, and
fulfillment of human rights.
• States incur three broad obligations by becoming parties to international human rights
treaties:
1. Obligation to Respect: States must refrain from interfering with the enjoyment
of rights.
2. Obligation to Protect: States must safeguard individuals against human rights
abuses by non-State actors.
3. Obligation to Fulfil: States must take positive actions to enable the full
realization of rights.

2. Non-State Duty-Holders

• Individuals can also be held accountable for serious human rights violations.
• The International Criminal Court (ICC) prosecutes individuals accused of crimes such
as genocide, war crimes, and crimes against humanity, which involve severe human
rights violations.

3. Can States Restrict Human Rights?

States may, under specific circumstances, limit or suspend certain human rights obligations
through limitation clauses and derogation clauses.

3.1 Limitation Clauses

• Limitation clauses allow States to restrict certain rights and freedoms to safeguard:
o National security
o Territorial integrity
o Public safety
o Prevention of disorder or crime
o Public health or morals
o Protection of the rights and freedoms of others
• Proportionality and necessity are key principles governing limitations:
o Limitations must be strictly proportionate to the intended advantage.
o Limitations must not render a right illusory.

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o Cited example: African Commission on Human and Peoples' Rights
emphasized the need for proportionality and necessity.
• Zambian Constitution Reference: Clause 11 of Part 3 of the Bill of Rights allows the
State to impose limitations on certain rights for public interest and security.

➢ Clause 11: Fundamental Rights and Limitation Clauses Clause 11 of the Constitution
of Zambia recognizes and declares the fundamental rights and freedoms to which every
person in Zambia is entitled. These rights include, but are not limited to:

1. Right to life, liberty, and security of the person


2. Freedom of conscience, expression, assembly, movement, and association
3. Protection of young persons from exploitation
4. Right to privacy and protection from deprivation of property without compensation

However, these rights are subject to limitations designed to ensure that the exercise of an
individual’s rights does not infringe upon the rights and freedoms of others or the public interest.
The provision establishes a balance between individual freedoms and societal welfare, implying
that rights are not absolute and may be limited in specified circumstances.

3.2 Derogation Clauses in a State of Emergency

• Derogations allow States to suspend certain obligations temporarily during emergencies


that pose a serious threat to the life of the nation.
• Conditions for invoking derogation:
1. Declaration of a state of emergency.
2. Notification of derogation measures to international organizations and treaty
parties.
3. Measures must be strictly required by the situation.
4. Derogation must be lifted as soon as the situation permits.
5. Certain rights are non-derogable (cannot be suspended), including:
▪ Freedom from torture
▪ Freedom from slavery
▪ Protection against enforced or involuntary disappearance
• Zambian Constitution Reference: Clauses 29, 30, and 31 of the 1996 Bill of Rights
outline the framework for declaring a state of emergency and provide guidelines for
derogation.

➢ Clause 29: Declaration of War

1. Presidential Power to Declare War: The President, in consultation with Cabinet, may
declare war by issuing a Proclamation published in the Gazette.
2. Duration of Declaration:
o The declaration remains in force until the cessation of hostilities.
3. Parliamentary Oversight:
o An Act of Parliament provides the specific conditions and circumstances under
which the President may declare war.

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➢ Clause 30: Declaration of Public Emergency

1. Presidential Authority:
o The President, in consultation with Cabinet, may declare a state of public
emergency by issuing a Proclamation published in the Gazette.

➢ Clause 31: Declaration Relating to Threatened Emergency

1. Presidential Authority:
o The President may declare a situation as a threatened emergency by issuing a
Proclamation published in the Gazette if the situation, if allowed to continue, may
lead to a state of public emergency.

4. Key Differences Between Limitation and Derogation

Aspect Limitation Clauses Derogation Clauses


Applies under normal Applicable only during grave
➢ Applicability
conditions. national emergencies.
Ensures public order, safety, and Allows temporary suspension of
➢ Purpose
protection of others. obligations in crises.
Applies to a wide range of Applies to rights not classified as
➢ Scope
rights. absolute.
Ongoing but subject to Temporary; must cease when the
➢ Duration
proportionality and necessity. emergency ends.
➢ Non-derogable Non-applicable (all rights Certain rights, such as freedom
Rights subject to some limitations) from torture, remain inviolable.

5. Absolute Rights (Non-Derogable and Non-Limitable)

Some rights are absolute, meaning they cannot be limited or derogated under any circumstances:

• Freedom from torture


• Freedom from slavery
• Right not to be subjected to enforced or involuntary disappearance

6. Summary

• Human rights impose duties on both State and non-State actors.


• States are bound by three key obligations: respect, protect, and fulfil.
• While States can limit certain rights through limitation clauses and suspend others
temporarily via derogation clauses, such measures must adhere to principles of
necessity, proportionality, and non-discrimination.
• Derogations are temporary measures during exceptional crises, while limitations are
applicable in normal governance to balance competing public interests.
• Absolute rights remain inviolable regardless of circumstances.
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