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0:05
Of course the story of human rights does not begin with the adoption on 26th of June 1945 of the United Nations Charter. The story of human rights really began with the Enlightment period and those of you who are familiar with the history of the French Revolution in 1789 or, indeed, with the history of the independence of the United States of America, declared in 1776, the adoption of the Federal Constitution in 1787, and the Bill of Rights appended to the federal constitution
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in 1791, you will know that of course, human rights were very much at the center of these revolutionary processes. Indeed in the 19th century, many liberal constitutions adopted during that period, particularly the years 1830 - 1848 on the European continent, were referring very specifically to human rights and included human rights within their constitutions. But human rights entered in international law in 1945 really, and this may be explained if we look back at the
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the history of the Second World War. This is a picture showing the US president Franklin Delano Roosevelt together with the UK Prime Minister Winston Churchill meeting on the HMS Prince of Wales, in August 1941 when they adopted a well known document called the Atlantic Charter. And the Atlantic Charter describes essentially the 8 key principles on which they believed the new world order that would result from the Second World War should be established. Amongst these key principles
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they mentioned the self-determination of peoples and they mentioned that all men in all lands may live out their lives in freedom from fear and want. So, this idea that human rights should be at the core of the reconstruction following the Second World War was already present in 1941. And the Atlantic Charter adopted by Roosevelt and Churchill was then approved by the Allies in the well known United Nations Declaration of the first of January 1942. So it is probably unsurprising that
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when the delegates met in San Francisco to prepare the United Nations organization's charter they had a concern for human rights that was very explicit. In fact the purposes of the United Nations listed in Article 1 of the Charter include the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. And in the course of these discussions preparing the UN Charter
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there were many references to human rights as part of what international economic and social cooperation should achieve. Look at article 55 of the UN Charter. It mentions amongst the tasks of the United Nations the promotion of universal respect for and observance of human rights and fundamental freedoms for all without discrimination, without distinction as to race, sex, language or religion. And article 56 of the Charter says that all members of the United Nations pledge
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to take joint and separate action in cooperation with the organization for the achievement of these purposes amongst which human rights. In other terms the UN Charter itself imposes on the members to work towards the fulfillment of Human Rights. What is of course perhaps strange is that the UN Charter does not define itself what human rights are, does not provide any catalog of human rights. Now in the course of the discussions having led to the establishment of the UN Charter,
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some such proposals were made to include a catalog of humain rights in the Charter itself and particularly I should mention the work, in this regard, of the representative of Panama to the conference Ricardo Alfaro. Ricardo Alfaro had been the president of Panama in 1930 - 1932. He later was a judge at the International Court of Justice and at the San Francisco conference, he put forward a proposal inspired by work he had done with the American Law Institute that had adopted in 1944
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a statement on essential human rights, and the proposal was to include in the UN Charter a list of human rights and fundamental freedoms that the UN should seek to promote and ensure respect for. That proposal was ultimately not successful in part because the delegates felt that it was going to be too much of a diversion and perhaps too divisive an enterprise and they wanted to finalize the work on the UN Charter sooner rather than later. So what was decided is that
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the definition of human rights would be the first task of the UN once the Charter would enter into force. And, indeed, the Charter establishes amongst other organs of the UN an Economic and Social Council that was established, inter alia, to make recommendations for the purposes of promoting respect for and observance of human rights and fundamental freedoms for all and to prepare draft conventions that the General Assembly of the UN would then have to approve and the Economic and Social Council
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ECOSOC was to work inter alia by establishing thematic commissions, working groups -- if you wish -- of diplomats working on different thematic issues including which human rights were explicitly mentioned in Article 68 of the UN Charter.There is a specific reference to the establishment of a commission for the promotion of human rights and so when the UN Charter was adopted and entered into force, very swiftly the Economic and Social Council (ECOSOC) worked towards implementing this
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Article 68 of the Charter and it established a Commission on the Status of Women in June 1946, a body where recommendations were prepared on the improvement of the situation of women. It is in the Commission on the Status of Women that the international convention on the elimination of all forms of discrimination against women would be adopted in 1979 . But most important the Economic and Social Council established the Commission on Human Rights and that was
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for sixty years until its replacement by the Human Rights Council that was the body within the UN where human rights matters were discussed. The Commission on Human Rights was a body of government delegates, high-level diplomats Initially, a relatively small number, 18 states were represented at the beginning in the Human Rights Commission but, later, when the UN expanded its membership, particularly after the decolonization period of the 1950s and 1960s
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the membership of the Commission expanded and it had 53 members when it was holding its final session in 2006. The Commission on Human Rights was the body where human rights were to be discussed, deliberated and the system was that the Commission on Human Rights was to adopt certain texts certain recommendations that would then be passed on to the ECOSOC, the Economic and Social Council and then would be approved by the General Assembly and opened
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as regards treaties to ratification by Member States But the Commission on Human Rights had a very key role to fulfill it was supported in this regard by a body of independent experts appointed in their personal capacity, called the Submission on the promotion and protection of human rights although it was called, until 1999, the Sub-Commission on prevention of discrimination and the protection of minorities. Now, it is within the Human Rights Commission
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that the most important instrument, that was really the leading document beginning 'the great adventure of the United Nations in the area of human rights' as it has been called was adopted. And that document was, of course, the Universal Declaration of Human Rights adopted just before midnight on the 10th of December 1948 by the General Assembly adopted by by 48 votes in favor 8 states abstained (the United Nations at that time was composed of 56 member states).
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And the abstaining states were South Africa that had just recently inaugurated its apartheid policy and therefore was opposed to a declaration that would state that racial discrimination should be prohibited. Another country that abstained was Saudi Arabia opposed to the right to choose and change one's religion. And the USSR and its satellite states who feared that human rights would be a pretext to interfere with their domestic affairs.
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But apart from these 8 abstentions, there was no vote against the declaration and we may say therefore that the declaration was adopted pretty much by consensus in Paris in 1948. Now the declaration is a hugely important instrument adopted by the Commission on human rights. It was really in the 30 articles, the summary of what international human rights would be in the next years. And although later many treaties were adopted at UN level in the area of human rights,
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all human rights in many ways are summarized in those 30 articles. Now the declaration was prepared within the Commission on human rights by a working group established to that effect. There was another working group working on monitoring mechanisms, and there was yet another working on a new treaty, a convention protecting human rights in the form of a legally binding instrument, but this working group of the human rights Commission headed by Eleonor Roosevelt - who was the widow
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of late president Franklin Delano Roosevelt who had died early in 1945 - that group managed to achieve a consensus across its members swiftly enough for the declaration to be presented to the General Assembly after just a couple of years of work. The group was also including René Cassin, representing the French government. He was a minister of president Charles de Gaulle at the time. To a large extent Eleanor Roosevelt and René Cassin were the leading figures within this group that drafted
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the Universal Declaration on Human Rights. The document that was adopted on 10th of December 1948 had been prepared on the basis of a draft that was proposed to the working group by this Canadian director of human rights within the United Nations, head of the directorate of the human rights at the time, a young Canadian international law professor called John Peter Humphrey. And John Humphrey basically prepared the work of the Commission by comparing how human rights were protected
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under domestic constitutions across the world. He included the Magna Carta, the Bill of Rights appended to the US Federal Constitution and the Déclaration des Droits de l'Homme et du Citoyen adopted in France on 14th of August 1789 and he compared all these documents trying to identify the common denominator across them that would be acceptable for states to adopt as part of a universal declaration of human rights. It's interesting to notice because he provides already indication
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of the specific nature of human rights that are neither pure international law nor just reducible to one part of domestic constitutional law. There are really a hybrid between the two. They are not classic international law but they of course do not belong just to constitutional law anymore. And this hybrid nature of human rights is part of what explains how they have been developed in recent years. And we will return to this point of course in the remainder of this course.
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Now it is important to note that the Universal Declaration of Human Rights was also important because it listed, in its 30 articles, both civil and political rights and economic, social and cultural rights. And the idea of interdependence and indivisibility and equal importance of all human rights, whether civil and political or whether economic, social and cultural, was very much present in the discussions that led to the adoption of the Universal Declaration of Human Rights.
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And indeed, this was faithful to the view, to the vision of the late US president Franklin Delano Roosevelt. Franklin Delano Roosevelt, although elected originally in 1932 on the relatively conservative, fiscally conservative platform, became a promoter of economic and social rights as a mean to address the economic crisis that US were facing in the1930s. He lead the effort of the US to strengthen the welfare state
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at federal level. This picture here shows him signing the social security act on 14th of August 1935. And this is just one of the very important pieces of legislation that Roosevelt adopted for the United States as part of this welfare state being established in the US. And so this philosophy that human rights required not only that people be free from fear but also that they be free from want was an idea that was very central to the Universal Declaration of Human Rights. In fact
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when Franklin Delano Roosevelt presented his State of the Union address to the US Congress in 1944, he made a reference to what he called a "second bill of rights" which was a metaphor to say that the rights of the Bill of Rights attended to the federal constitution adopted in US were incomplete and that there was the need to adopt legislation to protect the right to food, the right to housing, the right to social security for example for people to be protected from economic disempowerment.
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The argument of Roosevelt was essentially that economic and social security were key to avoid people being tempted by political extremism. "People who are hungry and out of a job are the stuff of which dictatorships are made" is one famous sentence that president Roosevelt uses in this State of the Union address. So the Universal Declaration of Human Rights was really very much in the continuity of this idea of interdependence and indivisibility.
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However it's important to note that already in 1948, when the Universal Declaration of Human Rights was adopted, there was an understanding that economic and social rights were of a different nature than civil and political rights. Of course they were equally important. Of course the two sets of rights were considered to be indivisible and interdependent but nevertheless economic and social rights were distinct and may call for a different type of supervision mechanism. Look at the article
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22 of the Universal Declaration of Human Rights. It is the first provision of the Declaration that refers to economic and social rights. This article 22 is on the right to social security. But it has actually a general reference to economic and social rights and it says the following. It says "everyone as a member society has a right to social security and is entitled to realization through national efforts and international cooperation and in accordance with the organization
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and resources of each state, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality". That reference to the right to social security, as requiring international cooperation, as requiring at progressive realization in accordance with the organization and resources of each state, is in fact a statement that economic and social rights are of a different kind, are of a different nature, require time to be implemented
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require budgetary commitments and require international cooperation for them to be effectively realized. The reference to the resources of each state in particular, was an allusion to the fact that developing countries could not be expected to protect the right to food, the right to housing, the right to education the right to health, like rich countries could be expected to do. So the level of development or the degree of development of each state was a relevant factor to be taken into account
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in assessing whether states are doing enough to implement economic and social rights. And this idea is an idea that will remain in international human rights really for the next 60 years. It is only in 2008 that one might say the bridge was completely built between civil and political rights on the one hand, and economic and social rights on the other hand. The Universal Declaration of Human Rights lead to a number of developments at UN level. In fact over the years the Declaration was
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implemented through a range of instruments That protects human rights under the chapeau of the United Nations 9 core human rights treaties were adopted over the years beginning with the International Convention on the elimination of all forms of racial discrimination adopted on the 21st of December 1965. It is a bit paradoxical that this International Convention on the elimination of all forms of racial discrimination was the first treaty to be adopted. And it was adopted very swiftly because
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the newly decolonized countries, who had recently gained independence in the 1960s particularly in Africa, very much insisted on racial discrimination, the elimination of racial discrimination, being at the top of the UN agenda. And so they pushed for this convention to be adopted very quickly. And they had at the time acquired sufficient importance in UN membership to push for this decision to be adopted. But the instruments that were really the immediate continuation
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of the Universal Declaration of Human Rights were 2 covenants adopted finally on the 16th of December 1966: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Let us go through some of these instruments very briefly to understand the importance that they've acquired in recent years. Firstly the first UN human rights treaty to be adopted, that was really the model for all the other UN human rights treaties,
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was the International Convention on the elimination of all forms of racial discrimination. It has today 176 States parties, it's a relatively widely ratified instrument and you see in this map the States parties to the convention. The States that are in dark blue on this map are the States that have accepted the rights to individual communications being filed with the the body of independent experts in charge of supervising compliance with this convention,
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this is the CERD committee - the Committee on the Elimination of Racial Discrimination. A significant number of countries have accepted this right of individual victims of racial discrimination to file communications with the the CERD committee. But other States have ratified this convention, are bound by this convention, without having accepted this right to individual communication and you see this map that identifies these States in this slightly lighter blue here on this map. As I said,
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the Universal Declaration of Human Rights of 1948 was initially a political declaration meant to have primarily a symbolic value, but immediately work began on implementing the declaration in the form of binding treaties. And the two treaties that were the immediate follow-up to the declaration with two covenants adopted in 1966. Symbolically it important that these convenants were adopted on the same day, on the 16th of December 1966, although in 1951 it had been decided
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that two separate instruments should be adopted, one for economic, social and cultural rights, the other for civil and political rights, not because some rights were more important than the others, not because States were challenging the idea that all rights were equally important and were interdependent and indivisible. Rather the idea was economic, social and cultural rights were rights of a different nature, calling for a different type of procedure,
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a different supervisory mechanism and therefore should be dealt with in a separate instrument resulting in the UN General Assembly at the request of the Commission on Human Rights really and the Economic and Social Council to adopt a resolution asking for two separate instruments to be prepared, that finally after some 18 years of discussions, being adopted in 1966. Now the two covenants, the Covenant on Economic, Social and Cultural Rights - the ICESCR,
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and the Covenant on Civil and Political Rights - the ICCPR, were mostly adopted simultaneously by States, ratified by States together. There were some exceptions to this but that explains why the two covenants entered into force roughly at the same time. The International Covenant on Economic, Social and Cultural Rights entered into force in January 1976. Today it has 161 States parties, which is a very significant membership although it is not quite universal yet. And you see on this map
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in the dark blue the States that have ratified the covenant, in light blue the States that have only signed the covenant but have not ratified it, and in blank the States that have taken no action whatsoever to move towards ratification of the Covenant. Now the Covenant on Economic, Social and Cultural Rights only recently has been complemented by Optional Protocol. That shall give to the committee on Economic Social and Cultural Rights the new task, the new competence
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to receive individual communications by which individual victims of violations of Economic, Social and Cultural Rights can complain that they have been victims of such violations allowing the committee to adopt decisions to express views as to whether or not there has been a violation of their rights. Of course this is a very recent instrument, it was only adopted on 10th of December 2008, symbolically interestingly exactly 60 years after the Universal Declaration of Human Rights
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was adopted. And because it's a still recent instrument, it has only been ratified by relatively small number of States, 11 States have ratified this instrument on 1st of November 2013. But gradually this Optional Protocol certainly shall attract a larger membership and the Committee on Economic, Social and Cultural Rights shall be in a position to develop a case-law based on these communications that it shall receive. Now the other covenant
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adopted at the same time as the Covenant on Economic, Social and Cultural Rights was a covenant on civil and political rights. The ICCPR, that entered into force just a few months after the International Covenant on Economic Social and Cultural Rights, the ICCPR entered into force on 23th of March 1976 and it has 167 States parties, slightly more then ICESCR in November 2013. China for example has ratified the International Covenant on Economic, Social and Cultural Rights
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but not the International Covenant on Civil and Political Rights and the situation is the exact opposite for the United States that has ratified the ICCPR but has not ratified the ICESCR on economic and social rights. The International Covenant on Civil and Political Rights also has an Optional Protocol allowing the Human Rights Committee - the Human Rights Committee is the body of independent experts trusted with supervising compliance with the ICCPR
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under the covenant on Civil and Political Rights, and the Optional Protocol allows the Human Rights Committee to receive individual communications emanating from victims of violations of the civil and political rights recognized under the ICCPR. Now that Optional Protocol was adopted in 1966 at the very same time that the International Covenant on Civil and Political Rights itself was adopted. And so unsurprisingly it has been ratified much more widely than the Optional Protocol to the
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ICESCR. 115 States parties have accepted this Optional Protocol to the ICCPR. Other conventions may be mentioned although I will not go to the full list of them, this would be perhaps too long to do, but to give you some examples : the Convention on the Elimination of All Forms of Discrimination Against Women was adopted in 1979, entered into force quite rapidly after this in 1981 and it has today 187 States parties, it is a very widely ratified convention although
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the most ratified of these is the Convention on the Rights of the Child which I'll mention in a minute. The Convention on the elimination of all forms of discriminations against women usually refered to by its acronym the CEDAW convention, is a convention that also has been complemented more recently in 1999 by Optional Protocol providing the CEDAW committee - the committee on the elimination of all forms of discrimination against women - to receive individual communications
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denouncing violations of the Convention. This Optional Protocol, in force since 2000, has today 104 States parties and you have here the map describing the States that have accepted this competence of the CEDAW Committee. I mentioned already the Convention on the Rights of the Child which is the most widely human rights instrument, the most widely ratified human rights instrument. It has 193 States parties today. The only States that have not
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ratified the Convention on the Rights of the Child are the United States of America and Somalia, that is without a real government since 1991, But apart from these two States all the other States, all the other members of the UN have ratified the Convention on the Rights of the Child which therefore has acquired a universal acceptance across States. Now of course these core UN human rights treaties, 9 in number, are important. They have some common characteristics
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that explain why they're usually discussed together and dealt with together. All these human rights treaties that I've mentioned, the CRC - the Rights of the Child, and Convention on the Elimination of All Forms of Discrimination Against Women, the two Covenants on Civil and Political Rights and on Economic Social and Cultural Rights, and of course the convention on the elimination of all forms of racial discrimination, all these core UN human rights treaties establish expert
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bodies, human rights treaty bodies as they are called, composed of independent experts that monitor compliance. And they do so by receiving reports from States on which they adopt some concluding observations or comments They also adopt general comments or general recommendations, they adopt in some cases, when they have the competence to do so, they adopt decisions or views on the individual communications that they receive when victims of violations denounce the violations that
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they have been inflicted. And these core UN human rights treaties therefore follow a common structure. But of course within UN there are other instruments that are relevant to human rights, for example in 1948 the Convention on the Prevention and Punishment of the crime of genocide was adopted, very important instrument that led to a very interesting advisory opinion of the International Court of Justice on the 28th of May 1951 - we will discuss this in context of
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reservations. We have a convention on the non applicability of statutory limitations towards crimes against humanity. We have an international convention on the suppression and punishment of the crime of apartheid adopted in 1973. So the UN human rights treaties stricto sensu, the 9 core UN human rights treaties are not the only instruments that are relevant to human rights but they are the most important and these are the instruments on which this course shall mostly be focused on. Let me close
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by emphasizing the distinctions between the International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights, the two covenants that implemented in treaty form the Universal Declaration of Human Rights of 1948. It's important to note that these two treaties are different because of the mechanisms for their supervision that were established under respectively the ICESCR and the ICCPR based on the view of States that
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civil and political rights could be immediately enforced by courts and by independent experts - these were rights considered to be justiciable if you wish - when economic and social rights were considered not to present these characteristics. Economic and social rights were considered to be subject only to progressive realization. They required time to be implemented, they required budgets to be invested, they could only be implemented thanks to international
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assistance and cooperation. And for this reason the ICCPR established a Human Rights Committee, a body of independent experts to monitor compliance, and there was no such body of independent experts initially monitoring compliance with the International Covenant on Economic Social and Cultural Rights. In fact the Committee on Economic Social and Cultural Rights was only established almost 10 years after the ICESCR entered into force, in 1985,
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because the Economic and Social Council realized that it was unable to really process adequately the reports submitted by States describing how they were implementing the ICESCR. And so the Ecosoc established the Committee on Economic Social and Cultural Rights by resolution 17/1985, modeled on the model of the Human Rights Committee establishing this new body to supervise compliance with the ICESCR. This also explains why in the ICCPR
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there is a reference, in article 2 paragraph 3, to the duty of States to provide effective remedies to individuals whose civil and political rights would be violated when this provision is not found in the ICESCR although the Committee on Economic Social and Cultural Rights has since adopted various general comments emphasizing the need to establish effective remedies for individuals victims of violations of their economic and social rights, that is not something
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that was stated as such in the ICESCR. I already mentioned that the ICCPR was complemented already in 1966 with an Optional Protocol providing for the possibility of individual communications being filed with the Human Rights committee. A contrario, we had to wait until the 10th of December 2008 for the Committee on Economic Social and Cultural Rights to receive the same competence under the International Covenant on Economic Social and Cultural Rights
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under the newly adopted Optional Protocol to that covenant adopted again in 2008. The rights under the ICCPR are considered to be immediate; the rights under the ICESCR are considered to be subject to progressive realization and we will discuss in great detail article 2 paragraph 1 of the ICESCR that defines what progressive realization means and under which conditions the resources available to each State should be taken into account in assessing
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whether the State is moving swiftly enough towards the realization of economic and social rights. Economic and social rights are subject to the availability of resources under the ICESCR and they depend for the realization on international assistance and cooperation and in these two dimensions, in these two aspects they are different from civil and political rights. To a large extent we may say that, over the past 65 years, since the Universal Declaration of
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Human Rights was adopted, the history of international human rights was one that aimed to bridge the gap between these two sets of rights and to a large extent that is the most important development we have witnessed over the past 65 years and it is in parts what will be described in this course on international human rights.
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