International Human Rights Law

Six Decades after the UDHR and Beyond

Manisuli Ssenyonjo, Mashood A. Baderin

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409403593
• eBook ISBN: 9781317114123
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This timely and valuable book explores the development of international human rights law over the last six decades. The volume brings together leading experts to reflect on different aspects of human rights law, not only considering and evaluating the developments so far, but also identifying relevant problems and proposing relevant possible perspectives for the continued positive future development of human rights law. The book is international in perspective, both in scope and context, and covers developments in the international protection of human rights since the adoption of the UDHR in 1948. The developments considered include the United Nations system of protecting human rights as well as regional human rights systems in Africa, America and Europe. It also considers some key themes relevant to human rights including globalisation, protecting human rights in emergency situations and trade sanctions, the development of human rights NGOs, and many others. The book will be an invaluable resource for students, academics and policy-makers working in the field of international human rights.

PART I
Introduction

Chapter 1
Development of International Human Rights Law Before and After the UDHR

Mashood A. Baderin and Manisuli Ssenyonjo

[I]t is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.1

1. Introduction

The international legal protection of human rights has undergone dramatic growth and evolution since the end of the Second World War, the founding of the United Nations (UN) in 1945, and the subsequent adoption, by the UN General Assembly, of the Universal Declaration of Human Rights (UDHR)2 on 10 December 1948.3 Although the historical origins of the concept of human rights are often linked with the idea of natural rights4 and there had been legal instruments adopted earlier in different states aimed at acknowledging and ensuring the protection of human rights by the rule of law,5 the proclamation and adoption of the UDHR on 10 December 1948 marked the real beginning of the momentous international journey towards ensuring that human rights are protected universally by the rule of law.6 Thus, the UDHR is considered today as the legal baseline for modern international human rights law, and 10 December 2008 marked the 60th anniversary of the setting of that legal baseline.

Although not intended as a legally binding instrument at the time of its adoption, the UDHR clearly acknowledged in its preamble, as quoted at the beginning of this chapter, the essential need to protect human rights through the rule of law. The UN General Assembly then proclaimed the Declaration to be

a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.7

From that humble beginning in 1948, international human rights law has evolved tremendously in different perspectives over the last six decades. Commemorating the 60th anniversary of the UDHR in 2008, the former UN High Commissioner for Human Rights, Louise Arbour, observed that ‘it is difficult to imagine today just what a fundamental shift the Universal Declaration of Human Rights represented when it was adopted 60 years ago’.8 Over those years there have been substantive developments in the theoretical, normative and legal perspectives of international human rights law, including debates on several conceptual issues regarding the scope and content of human rights generally. There has also been significant growth in the jurisprudence of different bodies and tribunals responsible for the interpretation and implementation of human rights law, and the human rights role of non-state entities such as non-governmental organizations (NGOs) has increased tremendously. New perspectives have also evolved regarding responsibilities and remedies for human rights violations relating to individual criminal responsibility for serious human rights violations, among others. This tremendous evolution of international human rights law in the past six decades calls for in-depth reflective analyses on the subject. The chapters in this volume, contributed by established human rights scholars and experts from different parts of the world, provide this much needed reflective analyses of the developments in the different areas of international human rights law over the past six decades since the adoption of the UDHR. This chapter provides an introductory background to these chapters.

2. The UN Charter and the Development of International Human Rights Law

The UN has been the major international institution that has consistently promoted, within the context of its Charter, the protection of international human rights through the rule of law. The drafting and adoption of the UDHR was itself undertaken within the context of the UN Charter. Thus, the significance of the UDHR as the baseline for international human rights law would be better appreciated with a brief analysis of the UN Charter in relation to the background and development of international human rights law prior to the adoption of the UDHR.

Prior to the creation of the UN after the Second World War in 1945, earlier attempts at including specific human rights provisions in the Covenant of the League of Nations after the First World War in 1919 were unsuccessful. The only substantive human rights provision in the Covenant was on labour rights in its Article 23, stating that members of the League ‘will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend’9 and ‘undertake to secure just treatment of the native inhabitants of territories under their control’.10 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.11

Nevertheless, private endeavours continued both within and outside the League of Nations for the realization of an international human rights legal regime. In 1929, the Institute of International Law, a private body of distinguished authorities on international law in Europe, the Americas and Asia, adopted the Declaration of the Rights of Man,12 in which it considered that it was the duty of every state to recognize, inter alia, the equal rights of every individual to life, liberty and property. The Institute also considered that every state had a duty to accord to everyone within its territory the full and entire protection of these rights without distinction as to nationality, sex, race, language or religion. Although the Declaration was not a legally binding document, it contributed to the popularization of the idea of an international human rights legal regime in the years immediately after its adoption. Commenting on the Declaration, Marshall Brown, writing in 1930, observed:

This declaration … states in bold and unequivocal terms the rights of human beings, ‘without distinction of nationality, sex, race, language and religion,’ to the equal right to life, liberty and property, together with all the subsidiary rights essential to the enjoyment of these fundamental rights. 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. Such a revolutionary document, while open to criticism in terminology and to the objection that it has not juridical value, cannot fail, however, to exert an influence on the evolution of international law. It marks a new era which is more concerned with the interests and rights of sovereign individuals than with the rights of sovereign states.13

The atrocities committed during the Second World War further provoked significant humanitarian concerns and moved the world community to call for formal international measures aimed at ensuring the legal protection of human rights and achievement of world peace and security. Thus, the Allies determined even before the end of the war that an international commitment to the protection of human rights should be a part of the post-war settlement.14 Consequently, in the preamble of the UN Charter that emerged after the war, the member states, after declaring their determination ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’,15 also declared their determination ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’.16

The Charter also provided substantively in its Article 1(3) that one of the purposes of the UN would be ‘(t)o 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’. Futhermore, Article 55 provided that:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote… [inter alia] universal respect for, and observance of, human rights and 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’.17

Although the Charter did not list the specific contents of the human rights and fundamental freedoms referred to, it signalled the dawn of the international human rights legal regime. 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’,18 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’.19 The basic objective of the (now disbanded) International Trusteeship System created under the Charter for the administration of the Trust Territories also included the requirement ‘to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world’.20 By virtue of these Charter provisions, seen in the context of Article 103,21 the UN member states are obliged to observe, promote and encourage universal respect for human rights. Today, the UN Charter is widely considered as the basis of an international ‘constitutional order’22 that imposes obligations on member states to uphold international co-operation in promoting and encouraging respect for human rights.23 Louis Henkin has concisely described the development as follows:

The UN charter ushered in a new international law of human rights. The new law buried the old dogma that the individual is not a ‘subject’ of international politics and law and that a government’s behaviour toward its own nationals is a matter of domestic, not international concern… It gave the individual a part in international politics and rights in international law, independently of his government. It also gave the individual protectors other than his government, indeed protectors and remedies against his government.24

Thus did the UN Charter provide a binding legal basis for the development of international human rights law in 1945, a foundation upon which the UDHR was subsequently built in 1948.

As noted above, apart from the Charter’s prohibition of discrimination as to race, sex, language, or religion, it did not clearly define what human rights states were obliged to promote and protect. Efforts by some countries and non-governmental organizations (NGOs) attending the San Francisco conference for the inclusion of an international bill of rights in the UN Charter failed mainly because they were opposed by the major powers.25 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. 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.26

3. The UDHR as a Common Standard of Achievement

The UDHR was the first UN instrument adopted that contained a list of internationally recognized human rights. It was adopted unanimously27 as a simple resolution of the UN General Assembly on 10 December 1948, and it has served, since its adoption, as a framework for subsequent international human rights treaties as well as many regional human rights instruments and national constitutions.28

As a common standard of achievement, the rights covered by the UDHR are the following: right to life, liberty and security of person (Art. 3); prohibition of slavery or involuntary servitude (Art. 4); prohibition of torture or cruel, inhuman or degrading treatment or punishment (Art. 5); right to recognition as a person before the law (Art. 6); right to equality before the law, non-discrimination, and equal protection of the law (Art. 7); right to an effective legal remedy (Art. 8); right to freedom from arbitrary arrest, detention, or exile (Art. 9); right in full equality to a fair and public hearing by an independent and impartial tribunal (Art. 10); right to be presumed innocent until proved guilty according to law, right not to be held guilty for any act or omission which did not constitute an offence at the time committed, and right not to be punished with a heavier penalty than applicable at the time of committing an offence (Art. 11); right to freedom from arbitrary interference with privacy, family, home or correspondence and attacks on one’s honour and reputation (Art. 12); right to freedom of movement and residence within state borders and right to leave any country and to return to one’s own country (Art. 13); right to seek and enjoy asylum (Art. 14); right to nationality and right to change nationality (Art. 15); right to marry and found a family (Art. 16); right to property (Art. 17), right to freedom of thought, conscience and religion (Art. 18); right to freedom of opinion and expression (Art. 19); right to freedom of peaceful assembly and association (Art. 20); right to take part in the government of one’s country, have access to public service, and take part in elections (Art. 21); right to social security (Art. 22); right to work, to equal pay for equal work, and to form and join trade unions (Art. 23); right to rest and leisure, limitation of working hours, and periodic holidays with pay (Art. 24); right to a standard of living adequate for health and well-being, including food, clothing, housing and medical care, and necessary social services, and right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond one’s control (Art. 25); right to education (Art. 26); right to participate freely in cultural life and to enjoy the arts and share in scientific advancement, and right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (Art. 27); and right to a social and international order in which the rights and freedoms can be fully realized (Art. 28).

Significantly, as can be noted from the above list, the UDHR covered both civil...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Foreword by David Harris
• List of Contributors
• PART I INTRODUCTION
• PART II CONCEPTS AND NORMS
• PART III MECHANISMS AND IMPLEMENTATION
• PART IV RESPONSIBILITIES AND REMEDIES
• PART V ‘AND BEYOND’
• Index