CHR-NI-2016-0001 Statement of Resource Person, Dr Margaretha Wewerinke-Singh 3 rights protected in the treaty (in dubio pro libertate et dignitate).12 Moreover, the principle of effectiveness reinforces the important maxim Ubi jus ibi remedium: where there is a right, there is a remedy13—a maxim that appears in Roman and Dutch law and that has also long been recognised in common law systems. 14 International human rights law accommodates the right to a remedy as a substantive right.15 The right is protected under customary international law, 16 and expressed in human rights treaties in various forms. Most treaties guarantee both the right of access to procedures through which claims of human rights violations are heard, and a substantive right to redress.17 The International Covenant on Civil and Political Rights (ICCPR)18 in particular contains comprehensive provisions on remedies in three separate articles. The broadest of these is Article 2(3) which spells out the obligations of State parties to the Covenant to ensure that any person whose rights are violated shall have an ‘accessible, effective and enforceable’ remedy. 19 The right to a remedy exists not only ex post facto but also when there is a threat of a violation,20 and is intertwined with the principle of effectiveness. An example of this is the understanding of the African Commission on Human and Peoples’ Rights (ACHPR) that “The rights and freedoms of individuals enshrined in the [African Charter on Human and Peoples’ Rights] can only be fully realized if governments provide structures which enable them to seek redress if they are violated”.21 The right to a remedy comprises victims’ entitlement to procedural and substantive redress. Where it is not certain whether an individual qualifies as a victim of a human rights violation, uncertainty should be addressed in accordance with the human 12 M Nowak, Introduction to the International Human Rights Regime (Martinus Nijhof 2003) 65–66. See also: A Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14 European Journal of International Law 529, 535. 13 H Black, Black's Law Dictionary, 6th edn (Saint Paul, Springer, 1990) 1294. The entry adds that ‘it is said that the rule of primitive law was the reverse: Where there is a remedy, there is a right.’ For a discussion on its relation to the principle of effectiveness see Alistair R Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004) 3, 170, 221. 14 H Black, Black's Law Dictionary, 6th edn (Saint Paul, Springer, 1990) 1120. 15 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Reports 43; Ahmadou Sadio Diallo (Guinea v DRC) (Judgment) [2010] ICJ Reports 639; Velásquez Radríguez v Honduras (1988) IACtHR (Ser C) no 4. 16 See: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res 60/147, (16 December 2005), Annex, Principles 1(b), 2, 3 and (pertaining to gross violations of international human rights law and international crimes) 11. See also: D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford University Press , 2005 ) 103 (noting that ‘[t]he decision to afford a domestic remedy formerly was left to the discretion of the wrongdoing State, subject to the vague and uncertain doctrine of denial of justice. Today, human rights law requires States to afford an effective remedy for any violation of rights’). 17 For an overview of global and regional human rights treaties that incorporate the right to a remedy see: D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford University Press , 2005 ) 113-20. See also: J Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text, Commentaries (Cambridge University Press 2002 ) 95, paras 3-4. 18 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). The Philippines ratified the ICCPR on 23 October 1986. 19 For a discussion of the evolution of the Human Rights Committee's position on the right to a remedy see generally: M Scheinin, ‘The Human Rights Committee's Pronouncements on the Right to an Effective Remedy: An Illustration of the Legal Nature of the Committee's Work under the Optional Protocol’ in Nisuke Ando (ed), Towards Implementing Universal Human Rights (Leiden, Martinus Nijhoff, 2004) (esp. 101-103). See also: D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford University Press , 2005 ) 50. 20 D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford University Press , 2005 ) 104ff. 21 Jawara v The Gambia (Communications 147/95, 149/96 74).