International Human Rights Law
International Human Rights Law
Section 701 of the Restatement of the Law, Third, The Foreign Relations Law of the United States, defines human rights as "freedoms, immunities and benefits which, according to widely accepted contemporary values, every human being should enjoy in the society in which he or she lives." International human rights law binds states to recognize certain rights that all individuals should enjoy regardless of their nationality, ethnicity, religion, or place of residence. Although the specific content and enforcement of international human rights laws are often subject to debate, nearly everyone agrees that there should be universal standards to protect individuals. International human rights law is distinct from international humanitarian law. While the former is primarily concerned with state treatment of individuals in times of peace and the absence of extraordinary circumstances, the latter is primarily concerned with limiting the effects of war on nonparticipants and regulating the conduct of war itself.
Scholars and theorists disagree on the source and justification for human rights. Some argue that rights are justified by religion or natural law. Others argue that the battle for rights emerged in response to the growing problems faced by workers during the Industrial Revolution. Still others justify rights based on the standards needed for the realization of human dignity or the need to be free from fear. Whatever the theoretical source, human rights can all be categorized as rights granted to individuals, or in the case of collective rights, to groups of people at a level below the state. Before rights were regulated at the international level, rights were conferred and enforced by states. If a state did not grant or respect the rights of its citizens, the citizens had no one to whom they could appeal. By regulating rights at the international level, however, individuals have a legal basis above the state that legitimizes their rights claims and, in some cases, assists in the enforcement of rights.
The protection of individuals by human rights law challenges the traditional practice of international law, a corpus of law that evolved to regulate the behavior of states in their interactions with one another. Although international law established complex mechanisms to handle day-to-day interaction between states and to provide a foundation for the settlement of disputes, until the twentieth century it left the treatment of citizens almost entirely up to the state. To regulate human rights at the international level, however, requires the codification of rules on the treatment of individuals by states. By doing so, international human rights law transcends the regulation of state-to-state relations and provides legal guidelines for the treatment of citizens. International human rights law is a direct challenge to the sovereignty of states over their citizens, a fact that helps to explain why the enforcement of human rights law has not evolved as quickly as the law itself.
The earliest efforts to regulate human rights through treaties can be traced to the Protestant Reformation in Europe. Religious leaders and heads of state were concerned about the persecution of those who shared their religious views but lived under a ruler of a different faith. Both the Peace of Augsburg (1555) and the Treaty of Westphalia (1648) included provisions regarding religious freedoms. These provisions were designed to prevent conflicts between rulers and states with different religious practices and could largely be considered as reciprocal agreements that created obligations to protect rights only as part of a larger treaty between states. Later efforts to regulate human rights at the international level included the effort to abolish the international slave trade and the protection of minority rights. The latter even received attention in the Treaty of Versailles (developed in 1919 after World War I [1949–1918]), parts of which called for the protection of certain minority groups within states. These provisions of the Treaty of Versailles were not meant to be generally applicable, however. They mentioned specific groups in specific countries whose rights should be protected in an effort to prevent conflicts between the states where the minorities lived and the states with which they had an ethnic bond. Nevertheless, the Treaty of Versailles did call for colonial powers to maintain certain standards of treatment for individuals in their colonies (Article 23).
At the outbreak of World War II (1939–1945), individual rights were still recognized and enforced primarily at the state level. Individuals only had legal rights to the extent that they were recognized by the state of which they were a citizen and in which they resided. The atrocities committed in World War II highlighted the problem of having a system of rights that depended upon states. Although international humanitarian law had evolved to provide some regulation of the conduct of war and the treatment of noncombatants, no real standard of international law existed to address the treatment of German citizens by the German government. Officially, the only laws that regulated Germany's treatment of its own citizens were German laws. In response to the charges regarding the Holocaust prosecuted at the International Military Tribunal at Nuremberg, many German officers claimed that they had not violated any law. To justify its prosecution of defendants for their role in the Holocaust, the Charter for the Nuremberg military tribunals applied the concept of crimes against humanity—crimes that were, by their very nature, reprehensible to the human conscience even if no custom or treaty had explicitly prohibited the practice. The decision to try German officials for crimes against humanity set an important legal precedent by holding individual representatives of a state legally accountable not only for their conduct in war, but also for the abuse of any civilian, including German nationals.
The other major development at the end of World War II was the signing and entry into force of the United Nations (UN) Charter (1945). The Charter was the first multilateral document that explicitly included the words "human rights." Article 68 of the Charter even included language requiring the Economic and Social Council (ECOSOC) to establish a Commission on Human Rights. One of the first tasks assigned to this commission was the drafting of an international bill of rights. Its work culminated in the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly on December 10, 1948. Although not in the form of a legally binding treaty, this document was the first truly international enumeration of human rights. Almost immediately, the commission began working toward a legally binding instrument (or instruments) that would require states to abide by the standards set forth in the UDHR. Several factors delayed the implementation of these standards, however, including Cold War disputes between the United States and the former Soviet Union and the rapid increase in UN membership as former colonies gained independence. The International Covenant on Civil and Political Rights (CCPR) and the International Covenant on Economic, Social, and Cultural Rights (CESCR) were not opened for signature until 1967 and did not enter into force
until 1976. Collectively, these three instruments—the two covenants plus the UDHR—are known as the International Bill of Rights.
While the covenants encompass a broad range of rights for all individuals, the UN has also worked to create legally binding instruments to secure specific types of rights and rights for particular populations. Among the many multilateral human rights conventions created under the UN system are the Convention on the Prevention and Punishment of the Crime of Genocide (CAG, 1948), International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1969), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1981), Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT, 1987), Convention on the Rights of the Child (CRC, 1990), and International Convention on the Protection of Rights of All Migrant Workers and Members of Their Families (CMW, 2003). These treaties have varying degrees of membership reflecting their level of global acceptance. As of 2004, for example, 192 member states had ratified the CRC. Of UN member states, only the United States and Somalia had failed to ratify the CRC; although neither country had ratified the treaty, both had signed it. At the other end of the spectrum, only twenty-six states had ratified the CMW.
status as law
The two most common ways for human rights norms to become binding on a state are through the signing of treaties that contain human rights norms and through the evolution of customary international law concerning human rights. States agree to human rights provisions in treaty form by signing and ratifying a treaty containing human rights provisions. For example, as of 2004 the United States had signed and ratified the CCPR with certain reservations, but it had neither signed nor ratified the CMW. Because it has ratified the CCPR, the United States is legally obligated to follow its provisions. It has no such obligation under the CMW.
States may also be obligated to abide by certain human rights norms even if they have not signed a treaty containing those provisions. The primary way that a state may be bound to abide by standards of law not contained in a treaty is when a common state practice evolves to the point where it becomes customary international law. Traditionally, a norm becomes customary international law if a significant number of states around the world follow a certain practice to the extent that they begin to believe in a legal obligation to follow the practice. An example of such a norm outside the realm of human rights is the practice of diplomatic immunity. For centuries before the practice of giving foreign diplomats immunity from prosecution was codified in the Vienna Convention on Diplomatic Relations (1964), states recognized the practice as a legal obligation of states.
Human rights norms may take on the status of custom if a sufficient number of states abide by them on a consistent basis, even if they do not sign and ratify treaties obligating them to do so. In addition, a human rights norm may obtain customary legal status if it receives near-unanimous support in international forums such as the UN, even if all states do not ratify treaties containing those norms. Norms that are widely adopted in state constitutions and in regional documents in addition to international documents may also obtain customary status. Based on this standard, many scholars consider the principles contained in the UDHR to have evolved to customary status based on the universal acceptance of that document in the early twenty-first century. Many of the norms embodied in human rights treaties eventually take on customary legal status. Although most international treaties are designed to create obligations from one state to another, human rights treaties are written in such a manner that their intention is to create norms of behavior for all states in regard to their citizens or to others in their jurisdiction .
Some human rights norms have achieved what is known as peremptory status. When a norm is peremptory, no state may derogate from it (not adhere to it) under any circumstance. This principle is also known as jus cogens, a Latin phrase meaning "compelling law." Among the norms that have reached the level of acceptance necessary to be considered peremptory are those banning genocide, slavery, extrajudicial killings, torture, arbitrary detention, systematic racial discrimination, and consistent violations of international recognized human rights. Most states would agree that committing any of these acts would qualify as a violation of international human rights law.
Traditionally, international law is enforced primarily by the states themselves. When one state violates its international obligations to another state, the victim state pursues any of a number of actions against the offending state. When international human rights law is violated, however, the primary victims are normally individuals residing in the offending states. While other states may make a claim against the offending state, they may not be as compelled to do so as they would be if they were the victim of a legal transgression. For this reason, international organizations such as the UN have primary responsibility for investigating violations of international human rights law. The United Nations Commission on Human Rights (CHR) actively investigates human rights abuses in particular countries or categories of abuse across a number of countries. Though it does not have the power to punish states guilty of human rights abuses, the UN and CHR do have the power to bring violations of human rights to the attention of the world.
This unwanted scrutiny is often enough to trigger some changes in policy; moreover, international condemnation may result in economic sanctions , such as those imposed on South Africa in the 1980s. In certain cases, the UN Security Council has established special tribunals to try individuals accused of committing particularly widespread violations of human rights. The first two examples of this practice were the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Both these tribunals have tried individuals for violations of international humanitarian law and for certain human rights abuses.
In addition to initiating investigations by member states and by the CHR, individuals who are the victim of human rights abuses also have the ability to report their situation to the UN through special mechanisms in the CHR. In addition to this mechanism, six human rights treaties—the CCPR, CESCR, CERD, CEDAW, CAT, and CRC—have special treaty-monitoring bodies to evaluate the implementation of the rights contained in each document. Four of these committees can hear complaints about human rights abuses from individuals.
In addition to efforts at the UN, some national and regional courts are able to adjudicate international human rights abuses. For example, a number of victims of human rights abuses have taken advantage of the United States' Alien Tort Claims Act to sue foreign governments in U.S. courts for violations of their rights. Other courts around the world have allowed for the arrest of prominent individuals implicated in widespread human rights abuses. One of the most famous examples of this was the 1998 arrest of former Chilean President Augusto Pinochet (b. 1915) in the United Kingdom based on a Spanish arrest warrant. Pinochet was accused of massive violations of rights while president of Chile, including the murder of Spanish citizens. The 1998 arrests did not directly lead to Pinochet's facing trial (the United Kingdom returned him to Chile based on health concerns), but his arrest set an important precedent. In January 2005, the Chilean Supreme Court found that Pinochet's failing health was not a sufficient reason for him to avoid standing trial for crimes committed during his presidency. The European Court of Human Rights, one of the most powerful regional courts in the world, has the authority to overturn the laws of states under its jurisdiction that it determines to be in violation of certain human rights.
Despite some disagreement over certain human rights treaties and their implementation, international human rights law has made remarkable progress since World War II. Debate on human rights law is no longer focused on whether or not it exists, but rather on its specific content and the degree to which it should be enforced. Many of the debates at the UN concerning human rights involve the cultural interpretation of rights. Reflecting this diversity of opinion, human rights treaties are written only with input from all members of the UN. At the start of the twenty-first century the CHR, in charge of the codification and implementation of human rights standards, represented some fifty-three member states, elected according to regional distribution. The continued codification and implementation of international human rights law depend upon the input of, and agreement among, states around the world.
American Law Institute. Restatement of the Law, Third: The Foreign Relations Law of the United States. St. Paul, MN: American Law Institute, 1990.
Gearty, Conner, and Adam Tomkins. Understanding Human Rights. New York: Mansell, 1996.
Goldstein, Judith L., Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter. Legalization and World Politics. Cambridge, MA: MIT Press, 2001.
Meron, Theodor. Human Rights in International Law: Legal and Policy Issues. Oxford, UK: Clarendon Press, 1984.
Meron, Theodor. Human Rights and Humanitarian Norms as Customary Law. New York: Clarendon Press, 1989.
Steinger, Henry J., and Philip Alston. International Human Rights in Context: Law, Politics, Morals, 2d ed. New York: Oxford University Press, 2000.
Eric W. Cox