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Part I
Introduction and overview
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The broad review of international human rights law
Scott Sheeran and Sir Nigel Rodley
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The genesis of this collaborative scholarly project was the recognition of a timely point to pause and undertake a broad and thorough review of the architecture of international human rights law. This is after a period that seems, at least with the benefit of hindsight, to have been one of almost constant, even meteoric development. While this volume examines the origins, nature and practice of international human rights law, the main thrust is an exploration of transverse themes, and the evolution, interaction with other bodies of law, and future of the discipline. The contributions draw on perspectives from different regions, by both emerging and established scholars and practitioners from diverse backgrounds and with varied expertise. As such, this volume provides one of the most comprehensive surveys of the discipline to date. The editing of contributions has confirmed many of our own intuitions, but has also challenged our thinking and provided new insights. It is from this privileged and overarching position, informed by the contents of this volume, that we venture a few key reflections on the corpus of international human rights law as a whole.
The human rights project, a great societal endeavour, has been a work in progress for two to three centuries nourished by foundational precepts of philosophy, political theory, and ecclesiastical thought of more than two millennia. A pivotal element of the project has been the establishment and significant influence of the discipline of international human rights law, characterised by impressive growth over the last sixty years and increasing specialisation. From the 1948 Universal Declaration of Human Rights, and the concepts and trends that preceded and underpinned that instrument, the body of international human rights law is now both vast and complex. The disciplineâs influence has extended into broader public international law and became integral in national and international life in respect of a wide range of issues. International human rights law is dynamic and its evolution is not linear; there is no static end point. As societies continuously evolve, so too does the way in which human rights are internalised and manifested, and the role they play in the social compact. In safeguarding human conscience and dignity, human rights concepts and law will continue to be a central pillar of the evolution of the societies that we have created.
Due to the impressive breadth and complexity of the body of international human rights law, a few important subjects could not be fully covered in this volume. Yet, despite its breadth, the human rights project is not without its potential gaps, whether substantive (e.g. no explicit right of freedom from corruption), in conflicting interpretation and views on the scope of rights (e.g. the freedom of religion), or a simple lethargy of significant development (e.g. right to political participation, cultural rights).
International human rights law is now more encompassing than was expected or even conceived in the Charter and Universal Declaration. Its growth has largely obviated for example the distinction between nationals and non-nationals within the jurisdiction of the state, thereby somewhat eclipsing other areas of law (e.g. diplomatic protection, international refugee law). With the development of extraterritorial obligations, which are accepted by most States, the scope and reach of human rights has enlarged into challenging areas such as overseas military operations and economic sanctions. A significant exception to this growing reach of human rights obligations has been the accountability of international organisations, such as the UN and international financial institutions, for the impact of their direct actions and exercise of public power on the enjoyment of human rights.
The international community has affirmed the approach, articulated in the 1993 UN Vienna Declaration and Programme of Action, that â[a]ll human rights are universal, indivisible and interdependent and interrelatedâ. However, the attractive simplicity of such a statement masks many issues that are not yet fully explored or resolved. For example, in light of the jus cogens status of such rights as the prohibition against torture, and the associated consequences under the law of responsibility, questions arise on aspects of hierarchy within international human rights law. In reality there is also a continuing challenge in respect of the judicialisation and legal enforceability of economic, social and cultural rights, evidenced inter alia by a fundamental lack of political will. The growing economic development and political strength of the Global South, a long-time supporter of such rights, may provide influences that both promote and undermine those rights.
While the topics in this volume are underpinned by the common pursuit of realising human rights through international law, a challenge of fragmentation and consistency exists within international human rights law (i.e not just vis-è-vis general international law, as identified in the work of the UN International Law Commission on fragmentation). For example, it is still contested whether the ârespect, protect and fulfilâ framework applies within international human rights law as a whole (cf. economic, social and cultural rights). The degree of growing specialisation and professionalisation has bred highly expert communities on subtopics of human rights (e.g. business and human rights), and consequently, a knowledge divide and sometimes scepticism on the part of some engaged with issues at the practical and day-to-day level. The fragmentation tension also has an institutional dimension, for example, presenting itself in the varied interpretations of human rights concepts and law across different fora and bodies, both specialist and general, in multilateral, regional and national contexts.
The changing nature of conflict globally â towards civil conflicts, insurgency and terrorism, and away from inter-state war â has engaged human rights in areas traditionally perceived as the reserve of other bodies of law, such as international humanitarian law. This has also contributed to fragmentation tensions, as the overlap and complex relationship of human rights with other regimes of law has needed to be tackled. Nevertheless, the real challenge to the apparent acquis of international human rights law that the first responses to the atrocities of 11 September 2001 seemed to represent, have in the end been in large measure successfully resisted.
Human rights have also had to coevolve with changes in social concepts and values. The development and differentiation of sex and gender identity in the social sciences and everyday life has challenged international human rights law. There have been normative and institutional advances to meet the changes, which have been controversial with some states, especially in the area of non-discrimination and rights of lesbian, gay, bisexual and trans-gender (LGBT) people.
In the contemporary context, human rights are primarily conceived and understood as legal rights. This dominant perspective is partly attributable to a continuing deficit in a theory of human rights beyond legal positivism, that is, the intellectual explanation and basis of âthe inherent dignity of the human beingâ and universal norms. While a basis beyond law is unresolved, there is a growing appreciation of the broader meaning of human rights within the international legal order. The protection of human rights under international law extends beyond international human rights law stricto sensu. Human rights concepts inform and shape other areas of international law, for example, international humanitarian, criminal and refugee law, which in turn contribute to the legal framework for the protection and promotion of human rights. At a deeper level, the human rights project has also âhumanisedâ international law impacting on its general content and probably its very foundations. This has occurred at both the doctrinal and structural levels (e.g. through obligations jus cogens and erga omnes) and in the nature of international law and its interpretation. It reflects a move towards a âlivingâ and constitutional approach to international law, particularly as based on the UN Charter as a constitutive instrument. The Charter may now be considered to reflect a positvisation of human rights within the international legal order.
The human rights project faces subterranean challenges that are interwoven into the fabric of international law. These center on international and domestic politics, history, religion and belief, culture and tradition, and have made it difficult for some globally, especially in developing countries, to fully embrace the project. International human rights law does not operate in a vacuum, but in the full context of national and international society. To date, important debates and challenges to universalism, including from cultural relativism (and sometimes even regionalism), have not been fully resolved. Democracy, in its most basic sense, is not a guarantee of respect for human rights: there remains the potential tyranny of the majority. For some, international human rights and religion are mutually exclusive and hermeneutically sealed. Human rights have been successfully manipulated and the subject of realpolitik by political elites and decision-makers. Regional human rights systems may provide a counterweight to some of these problems, as evident with the Inter-American system and that regionâs lack of overt rejectionism or relativism. However, such regional systems are absent in most areas of the world, and some of those that exist are substandard or underdeveloped.
The existing gap between international human rights law and practice will only continue to undermine the progress of the project. Despite the establishment and impressive development of an international system to protect human rights, the state-centric fundamentals of the international systemâs architecture are largely unchanged since the adoption of the UN Charter and the Universal Declaration. While legal doctrine has developed to impressive levels of sophistication in some areas, the means of implementation and enforcement have generally lagged behind and maintained recommendatory in nature. The growing role of the UN Human Rights Council, building after a shaky start on the achievements of its predecessor the Commission on Human Rights, while not transformative has been important and progressive despite the strong political headwinds. However, human rights are still not fully mainstreamed in the UN system. This is evident in the UN Security Councilâs practice, which largely treats human rights as a second tier issue, useful for âmopping upâ after violence, even though todayâs serious human rights violations often develop into tomorrowâs conflicts. At the day-to-day level, the political will for full implementation of human rights is often lacking, conditional or circumspect.
There are also challenges that loom ahead for international human rights law to effectively respond to fundamental global trends. While a number of such international issues have been identified, their full impact on human rights is yet to be realised and understood. These global trends include, for example, population growth and the need for environmental protection (e.g. the right to food, water and sanitation) and proliferation in technology and new media (e.g. the right to privacy).
In summary, as the human rights paradigm has moved â after unquantifiable sacrifice â from the political and legal fringes to the (still contested) national and international mainstream, there has been a tendency to look for new areas in which the concept can take hold. The tendency has been met with varying degrees of success. What emerges from the present volume, which explores many of the new territories, is the continuing relevance and centrality of the core human rights paradigm that aims to protect the autonomy and dignity of the individual human being from the potentially oppressive power of the organised community.
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Part II
Nature and evolution of international human rights law
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The historical development of human rights*
Wiktor OsiatyĹski
1 Introduction
The concept of human rights consists of at least six fundamental ideas:
1. That the power of a ruler (a monarch or the state) is not unlimited.
2. That the subjects have a sphere of autonomy that no power can invade and some rights and freedoms that need to be respected by a ruler.1
3. That there exist procedural mechanisms to limit the arbitrariness of a ruler and protect the rights and freedoms of the ruled (points 1 and 2, above, have already transformed subjects into the ruled) who can make valid claims upon the state for such protection.
4. That the ruled have rights that enable them to participate in decision-making (with this, the ruled have changed into the citizens).
5. That the authority has not only powers but also some obligations, which may be claimed by the citizens.
6. That all these rights and freedoms are granted equally to all persons (this transforms individual rights/privileges into human rights).
The ideas on this list have been emerging, disappearing, re-emerging and evolving throughout history, reflecting changing social conditions and serving various needs.2 Before the concept of human rights could be formulated and adopted, a number of specific customs, legal provisions, institutions and ideas had to emerge. Eventually, it found its quasi-legal incorporation in the Universal Declaration of Human Rights (UDHR) adopted by the UN General Assembly on 10 December 1948. The idea of human rights was first announced in the Atlantic Charter, an eight-point declaration issued on 14 August 1941 by United States President Franklin D. Roosevelt and British Prime Minister Winston Churchill, who reasserted the basic ideas of democracy and individual freedom as a shared goal among the Allies. It was upheld in the Charter of the United Nations, signed on 26 June 1945 in San Francisco. Along with the Convention on genocide, human rights were to codify natural law, which had been used with some reluctance in the Nuremburg trials of Nazi leaders. Although most post-WWII constitutions provided for institutional arrangements that could refine and balance the passions of a majority, human rights could limit the risk that formally legitimate governments might commit crimes and cruelties in the name of a majority, or a nation, as was the case in Nazi Germany. The work of the Economic and Social Council focused on enshrining within human rights documents at least some of the progressive labour legislation that had been developed by welfare state reformers and accepted by the International Labou...
