International law, Sixth edition
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International Law MALCOLM N. SHAW
Ibid., para. 183.
114 Ibid., para. 193. 115 Ibid., paras. 198–9. 116 Ibid., para. 209 and see also para. 319. The Court, however, was not convinced, on the basis of the evidence before it, that it had been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such, ibid., para. 277, nor that deportations and expulsions of the protected group amounted to genocide for the same reason, ibid., para. 334, nor indeed the imposition of terrible conditions on camp detainees and other allegations, ibid., paras. 354, 370 and 376. The exception to this was with regard to Srebrenica, where the Court found that the necessary intent had been established to the required standard of proof, paras. 278–97. 117 Ibid., para. 427. 118 Ibid., para. 430. 119 Ibid., para. 431. 120 Ibid. 121 Ibid., para. 450. 286 i n t e r nat i o na l l aw Prohibition of discrimination Apart from the overwhelming requirement of protection from physical attack upon their very existence as a group, groups need protection from discriminatory treatment as such. 122 The norm of non-discrimination thus constitutes a principle relevant both to groups and to individual members of groups. The International Convention on the Elimination of All Forms of Racial Discrimination 123 was signed in 1965 and entered into force in 1969. It builds on the non-discrimination provisions in the UN Charter. Racial discrimination is defined as: any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, eco- nomic, social, cultural or any other field of public life. States parties undertake to prohibit racial discrimination and guaran- tee equality for all in the enjoyment of a series of rights and to assure to all within their jurisdiction effective protection and remedies regarding such human rights. 124 It is also fair to conclude that in addition to the existence of this Convention, the prohibition of discrimination on racial grounds is contrary to customary international law. 125 This conclusion may be reached on the basis inter alia of articles 55 and 56 of the UN Charter, articles 2 and 7 of the Universal Declaration of Human Rights, the Inter- national Covenants on Human Rights, 126 regional instruments on human 122 See e.g. Rehman, International Human Rights Law, chapter 10; W. Vandenhole, Non- discrimination and Equality in the View of the UN Human Rights Treaty Bodies, Antwerp, 2005; Joseph et al., International Covenant, chapter 23; A. Bayefsky, ‘The Principle of Equality or Non-discrimination in International Law’, 11 HRLJ, 1990, p. 1; J. Greenberg, ‘Race, Sex and Religious Discrimination’ in Meron, Human Rights in International Law, p. 307; W. McKean, Equality and Discrimination under International Law, Oxford, 1983, and T. Meron, Human Rights Law-Making in the United Nations, Oxford, 1986, chapters 1–3. 123 See e.g. N. Lerner, The UN Convention on the Elimination of All Forms of Racial Discrim- ination, 2nd edn, Dordrecht, 1980. 124 See further below, p. 311, with regard to the establishment of the Committee on the Elimination of Racial Discrimination. Note also the Convention on the Suppression and Punishment of the Crime of Apartheid, 1973. 125 See e.g. the Dissenting Opinion of Judge Tanaka in the South-West Africa cases, ICJ Reports, 1966, pp. 3, 293; 37 ILR, pp. 243, 455. 126 See below, p. 314. t h e p r o t e c t i o n o f h u m a n r i g h t s 287 rights protection 127 and general state practice. Discrimination on other grounds, such as religion 128 and gender, 129 may also be contrary to custom- ary international law. The International Covenant on Civil and Political Rights provides in article 2(1) that all states parties undertake to respect and ensure to all individuals within their territories and within their ju- risdictions the rights recognised in the Covenant ‘without distinction of any kind such as race, colour, sex, language, religion, political or other 127 See below, pp. 347 ff. 128 See e.g. the Declaration on the Elimination of All Forms of Intolerance and of Discrim- ination Based on Religion or Belief, 1981, General Assembly resolution 36/55 and the appointment of a Special Rapporteur to examine situations inconsistent with the Decla- ration by the UN Commission on Human Rights, resolution 1986/20 of 10 March 1986. See also Odio Benito, Elimination of All Forms of Intolerance and Discrimination Based on Download 7.77 Mb. Do'stlaringiz bilan baham: |
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