Development of International Law of Human Rights

Author: Pankhuri, Agarwal, Research Associate

“All human rights are universal, indivisible and inter-dependent and interrelated ((Pt. I, para.5 of the Vienna Declaration and Programme of Action.)).”

Human rights as a concept are linked with the idea of ‘natural rights’. Traditionally, the international law was considered to be a law governing the relations between nations. The definition was expanded to include various intergovernmental organizations after the First World War. Interestingly, human beings were never considered as the subjects of international law, which led to the affirmation of the logical conclusion that the manner in a state treated its own nationals is not under the domain of international law for it did not affect the rights of other states. But, the scholarly doctrines and philosophies bore a profound effect on the emergence of international law of human rights (ILHR). The ‘doctrine of humanitarian intervention’ paved way for the limitation on the powers of state in relation to the human rights of their nationals. It recognized as lawful the use of force by a state to stop the maltreatment by a state of its own nationals when that conduct was so brutal and of large scale as to shock the conscience of the community of nations ((Thomas Buergenthal et. al., International Human Rights in a Nutshell, West, 4th ed., 2009)). The establishment by the Security Council of various ad-hoc international tribunals, including the international Tribunals for the Former Yugoslavia and for Rwanda and the mixed war crimes tribunals for Sierra Leone and Cambodia, to punish those responsible for crimes against humanity, genocide and war crimes committed in those regions may also be seen as a modern form of collective humanitarian intervention in response to massive human rights violations ((ibid)). Gradually, internationalization of human rights was achieved whereby the states limit their sovereignty by entering into treaties consenting to treat their nationals in a humane manner and to accord them certain human rights.

In the nineteenth century, the positivist doctrine of state sovereignty and domestic jurisdiction reigned supreme to which the exceptions related to piracy jure gentium and slavery were carved out. The establishment of League of Nations in 1919 and the creation of International Labor Organization (ILO) were a step forward in the direction. A vain attempt was made for the inclusion of provisions relating to protection of Human Rights in the Covenant of League of Nations established after the First World War ((The only substantive human rights provision in the Covenant was on labor rights in its article 23, stating that members of the league ‘will endeavor to secure and maintain fair and humane conditions of labor for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend’ and ‘undertake to secure just treatment of the native inhabitants of territories under their control’)). However, there emerged separate minority protection treaties and state declarations guaranteeing the protection of the rights of minorities, with the League of Nations performing a supervisory role over the obligations created, which were considered of international concern ((see e.g. Article 12 of the Polish Minorities Treaty (1920).)). The recognition of state’s duty as to protection of human right to life, liberty and property of every individual irrespective of nationality, sex, race, language or religion was done by the Institute of International law in the Declaration of the Rights of Man in 1929. The interesting comment by Marshall Brown should be quoted here: “It aims not merely to assure to individuals their international rights, but it aims also to impose on all nations a standard of conduct towards all men, including their own nationals. It thus repudiates the classic doctrine that states alone are subjects of international law ((P.M. Brown, ‘The New York Session of the Institut De Droit International’, American Journal of International Law, 24 (1930), pp. 126–8, at p. 127.)).”

The need for international legal norms and institutions addressing human rights violations became apparent in the 1930’s and 1940’s. As early as 1941, President Franklin D. Roosevelt called,  in  his famous “Four Freedoms” speech, for “a world founded  upon four essential human freedoms,” namely, “freedom of speech and expression,” “freedom of every person to worship God in his own way,” “freedom from want,” and “freedom from fear ((Michael J. Bazyler, Roger P. Alford, Holocaust Restitution: Perspectives on the Litigation And Its Aftermath, New York University Press, 2006, p. 21.)).”

The apparent need for law relating to International Human Rights was realized after the catastrophe of the Second World War leading to rise of intergovernmental committees and organs and courts to deal with human rights violation. The gross violation of human rights in the Second World War was a shame to the international community trying to popularize the idea of International Law of Human rights. The baseline of the development of IHRL is the UN Charter which substantively provided in its Article 1(3) that one of the purposes of the UN would be ‘to achieve international co-operation in…promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. The UN member states then pledged themselves under Article 56 of the Charter to take joint and separate action in co-operation with the organization for the achievement of the purpose stated in article 55. To take the international human rights initiative forward, the Charter provided for the establishment of an Economic and Social Council (ECOSOC) whose functions included making ‘recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all ((UN Charter, Art. 62(2).))and the powers to ‘set up commissions…for the promotion of human rights, and such other commissions as may be required for the performance of its functions’. ((ibid., Art. 68.))Today, the UN Charter is widely considered as the basis of an international ‘constitutional order’ ((N. White, ‘The United Nations System: Conference, Contract or Constitutional Order?’, Singapore Journal of International and Comparative Law, 4 (2000), pp. 281–99, at p. 291.))that imposes obligations on member states to uphold international co-operation in promoting and encouraging respect for human rights ((B. Simma, The Charter of the United Nations: A Commentary, Oxford University Press , 2002, Vol. 1, pp. 33–47.)).

Soon after the adoption of the UN Charter, ECOSOC, acting on its mandate and powers under the Charter, established a Commission on Human Rights in 1946 with the mandate to develop the framework for an International Bill of Rights that set out clearly the specific contents of the international human rights recognized under the Charter ((Mashood A. Baderin, Manisuli Ssenyonjo , International Human Rights Law: Six Decades After the UDHR and Beyond, Ashgate Publishing Company, 2010, pp. 6.)). The Commission, appointed a Drafting Committee chaired by Eleanor Roosevelt, which drafted the UDHR between January 1947 and December 1948 as the first part of the so-called International Bill Of Rights. The UDHR was the first UN instrument that contained a list of internationally recognized human rights. Although the UDHR at the time of its adoption was not a legally binding instrument, over time it has evolved to the extent that some of its provisions now either constitute customary international law and general principles of law or represent elementary considerations of humanity ((I. Brownlie, Principles of Public International Law, Oxford University Press, 7th ed. pp. 559)). Its considerable practical importance, in that regard, has been demonstrated through its invocation by the International Court of Justice (ICJ), ((The ICJ invoked the UDHR in relation to the detention of hostages ‘in conditions of hardship’. See Case Concerning United States Diplomatic and Consular Staff in Tehran, ICJ Reports, 3 (1980), para. 91, at p. 42.))the International Criminal Court (ICC), ((see Pre-trial Chamber I, Situation in Darfur, Sudan: In the Case of the Prosecutor v Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09 (4 March 2009), para. 156.))regional and domestic courts as an aid to interpretation of relevant human rights treaties ((see The European Court of Human Rights in the Golder case, ILR 57, 201 at pp. 216–17.)), and national constitutional provisions protecting human rights ((see Attorney General v Susan Kigula and 417 Others, Supreme Court of Uganda, Constitutional Appeal No. 03 of 2006, Judgment of 21 January 2009.)). The basic regional human rights treaties are the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the European social Charter (1961), the American Convention on Human Rights (1969), the African Charter on Human and Peoples’ Rights (1981), and the Arab Charter on Human Rights (1994).

The International Law of Human Rights is an assertion of the rights of the individuals by virtue of the fact they are human. UDHR is the first major international instrument defining “human rights”, and contains not only civil and political but also economic and social rights. The UN Commission on Human Rights drafted two binding covenants which together with the UDHR constitute the International Bill of Rights. The International Covenant on Civil and Political Rights, 1966, requires each State Party to “respect and to ensure to all individuals…the rights recognized in the present Covenant ((Article 2.)).” The International Covenant on Economic, Social and Cultural Rights, 1966, requires each State Party to “take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant ((Article 2.)).” The ILHR is defined as the law concerned with the protection of individuals and groups against violation of their internationally guaranteed rights and with the promotion of these rights ((supra 3.)). The UN Charter spawned a vast body of international human rights law, encompassing numerous international agreements and instruments adopted by the United Nations, its specialized agencies, and such regional intergovernmental organizations as the Council of Europe, the Organization of American States and the Organization of Africa Unity ((Thomas Buergenthal , International Human Rights Law and Institutions:  Accomplishments and Prospects, Washington Law Review, Vol. 63, No.1, 1988.)). The United Nations Charter internationalized human rights; but UDHR has become the centerpiece of the international human rights revolution ((B.G. Ramcharan, Human Rights: Thirty Years After The Universal Declaration : Commemorative Volume on the Occasion of the Thirtieth Anniversary of the Universal Declaration of Human Rights, BRILL, 1979.)). The Declaration’s list of civil and political rights includes the right to life, liberty, and security of person; the prohibition of slavery, torture, and cruel, inhuman, or degrading treatment; the right not to be subjected to arbitrary arrest, detention, or exile; the right to a fair trial in both civil and criminal matters; the presumption of innocence and the prohibition against the application of ex post facto laws and penal-ties, economic, social and cultural rights  indispensable for his dignity and the free development of his personality ((supra 21.)).

International Human Rights Law developed in the context of global revulsion at the horrors of the Second World War and the establishment of the United Nations (UN) in 1945 ((David Patterson, Leslie London, International Law, Human Rights and HIV/AIDS, Bull World Health Organ. 2002; 80(12): 964–969.)). The end of the Cold War has deideologized the struggle for human rights and reinforced the international human rights movement ((Thomas Buergenthal, ‘The Normative and Institutional Evolution of International Human Rights’, Human Rights Quarterly, Vol. 19, No. 4 (Nov., 1997), pp. 703-723.)). The first stage in this process begun with  the entry into  force  of  the UN Charter, adoption of the Universal Declaration of Human Rights, the Genocide  Convention the Convention on the Elimination of All Forms of Racial Discrimination, European Convention on Human Rights, American Declaration on the Rights and Duties of Man, the Convention against Discrimination in Education and the Convention Concerning Discrimination  in Respect of Employment and Occupation. The second stage began in the late 1960s whereby the nature or scope of the human rights obligations under Articles 55 and 56 of the UN Charter was deliberated and the meaning turned out to be “to promote…universal respect for, and observance of, human rights and fundamental freedoms.”. The adoption of ECOSOC  Resolution 1235 (XLII) of 6 June 1967 and ECOSOC Resolution 1503 (XLVIII) of 27 May 1970, empowered the UN Sub-Commission on the Prevention of Discrimination and Protection of  Minorities to develop a mechanism  for dealing with gross violations of human rights. These two ECOSOC resolutions continue in force to this day and serve as the foundation of the UN Charter-based system for the protection of human rights ((ibid)). The Universal Declaration and the International Covenants on Human Rights are collectively known as the International Bill of Human Rights. The United Nations has formulated various other human rights treaties dealing with specific subjects, including genocide, slavery, racial discrimination, torture, women’s rights, and so on like Convention on the Prevention and Punishment of the Crime of Genocide and the International Convention on the Elimination of all Forms of Racial Discrimination being ratified by many countries to supplement the International Bill of Human Rights. The International Covenants on Human Rights consist of three separate treaties: the International Covenant on  Civil and Political Rights, the Optional Protocol to the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights adopted by the United Nations General Assembly in  1966 to  transform  the general principles proclaimed in  the Universal Declaration into binding treaty  obligations and to establish an international machinery to ensure governmental compliance. The UDHR is not a treaty being adopted by the United Nations General Assembly in the form of a resolution, thus bearing no force of law. The UDHR derives its existence and hence the authority from the duty of the UN to protect and promote human rights. The time and the dire need of the world transformed this design to bear the hologram of normative status for whenever governments, the United Nations, or other international organizations had to deal with human rights issues, they referred to and drew on the standard set out in the Declaration, until it came to symbolize “human rights” the world over. The history of its development though smeared with the bloodsheds and ranting of the humanity, but it also stands as a witness to the changing panorama of consciousness and realization of ‘inalienable’ human rights by the international community. The emergence of International Law of Human Rights is an astounding gift of the world to the nationals.

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