International Human Rights

Jack Donnelly, Daniel J. Whelan

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429561047
• Topic: Law
• Subtopic: International Law
• Edition: 6

Fully updated, the sixth edition of International Human Rights examines the ways in which states and other international actors have addressed human rights since the end of World War II.

This unique textbook features substantial attention to theory, history, international and regional institutions, and the role of transnational actors in the protection and promotion of human rights. Its purpose is to explore the difficult and contentious politics of human rights, and how those political dimensions have been addressed at the national, regional, and especially international levels.

Key features include:

• substantially revised throughout, including new material on LGBTQ rights in Africa, Indigenous peoples' rights in Guatemala, the Rohingya crisis in Myanmar, and a new chapter on human rights and development;

• 
  
  

• in-text features such as discussion questions, suggested readings, case studies, and "problems" to promote classroom discussion and in-depth examination of topics;

• 
  
  

• concise yet clearly organised and comprehensive coverage of the topic.

• 
  
  

International Human Rights is essential reading for courses and modules in human rights, politics and international relations, law, criminal justice, sociology, social work, public administration, and international development.

Part I

History and Theory

1 Human Rights in
Global Politics

Historical Perspective

There are many historical precursors to the recognition of human rights as a matter of global concern, including limited protection for some Christian minorities in the “Westphalia” Treaties of Münster and Osnabrück (1648), which brought the Thirty Years’ War to an end; provisions protecting the rights of religious and linguistic minorities in treaties recognizing the sovereignty and independence of Belgium (1815), Greece (1832), and Serbia (1878); nineteenth-century campaigns against the slave trade and slavery; and the protection of workers’ rights in the International Labor Organization, created after World War I. But only with the end of World War II and the establishment of the United Nations (U.N.) did human rights begin to take on an internationally obligatory nature.

Prior to World War II there was near-universal agreement that human rights were not a legitimate concern of international relations. For example, the Covenant of the League of Nations, which is usually seen as an expression of the idealism of the immediate post-World War I era, does not even include the term human rights. This reflected a particular understanding of sovereignty, a central organizing principle of international relations for the past three and a half centuries.

States, the primary actors in international relations, were seen as sovereign, that is, supreme authorities, and thus subject to no higher political authority in their own territories. The principal duty correlative to the right of sovereignty is nonintervention, the obligation not to interfere in matters essentially within the domestic jurisdiction of other sovereign states (see §2.8). Human rights, which typically involve a state’s treatment of its own citizens in its own territory, were until relatively recently seen as such a matter of protected domestic jurisdiction. A major purpose of this book is to chronicle the ways in which, over the past seventy years, human rights have produced fundamental changes in understandings and practices of state sovereignty.

1 The Emergence of International Human Rights Norms

The contemporary human rights movement can be traced more directly back to the era between the two world wars. For example, the International Law Commission adopted the Declaration of the International Rights of Man in 1929. In the 1930s British novelist and activist H. G. Wells cast much of his advocacy for social reform in terms of a global regime committed to human rights. Such efforts, however, represented only a small fringe of civil society. Even those who believed that all human beings had an extensive set of equal and inalienable rights—a distinctly minority idea in an era that had little trouble justifying racism, sexism, and colonialism—did not suggest that other states had rights or obligations with respect to those rights. And not a single state endorsed the idea that governments had international legal human rights obligations to their own citizens.

This began to change during World War II. As the Allied powers reflected on the nature of their struggle with Hitler’s Germany—and on how to justify the war to their own citizens and the rest of the world—respect for human rights became an increasingly central theme. In his January 1941 State of the Union address, nearly a year before the United States entered the war, President Franklin D. Roosevelt framed the Allied war effort in terms of securing four fundamental freedoms: of speech, of religion, from want, and from fear. This initial statement was further elaborated by Roosevelt and British prime minister Winston Churchill, who negotiated a statement of Allied war aims in the Atlantic Charter of August 1941. The January 1942 Declaration by United Nations claimed that “complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands.” From late 1942 on, human rights were a part of postwar planning efforts within both the American and the British governments, the two leading Allied powers.

The immediate impetus for international action, however, came in 1945 as Allied governments and publics began, finally, to grapple with the Holocaust, Germany’s systematic mass murder of millions of innocent civilians, a crime that the Polish lawyer Raphael Lemkin had recently named genocide. Before the war, little was done to aid Jews trying to flee Germany and surrounding countries. Some who escaped were even denied refuge by Allied governments, including the United States. During the war, no effort was made to impede the functioning of the death camps. The Allies did not even target the railway lines that brought hundreds of thousands to the slaughter at Auschwitz and other camps. The world watched—or, rather, turned a blind eye to—the genocidal massacre of six million Jews, a million-half Gypsies (Roma), and tens of thousands of communists, social democrats, homosexuals, church activists, and just ordinary decent people who refused complicity in the new politics and technology of barbarism. As the war came to an end, though, Allied leaders and citizens, previously preoccupied with military victory, belatedly began to confront this horror.

The Nuremberg War Crimes Trials, which started in 1945, introduced the novel charge of crimes against humanity. (These crimes were distinct from already-recognized violations of the laws of war, which had been codified at the beginning of the twentieth century in the so-called Hague Laws.) For the first time, officials were held legally accountable to the international community for offenses against individual civilians, not states, whether or not those civilians were citizens of the governments that committed the crimes.

These shocking crimes were crucial in mobilizing broad support for international action. But they were only the tip of the iceberg. Many organizations and individuals had already recognized that wartime atrocities had been preceded by, and built on, years of systematic state-imposed violations of fundamental rights. Prior to the instigation of the Final Solution, Jews and others perceived opponents and “deviants” in Germany had been stripped of many of the civil, political, and economic rights they held prior to Hitler’s rise to power. In addition, there was general agreement that the worldwide economic depression and ensuing economic insecurity of the 1930s contributed significantly to the rise of rights-abusive regimes and to the unraveling of the international system that helped to precipitate the war. Proposals for the protection of fundamental rights thus become a central focus of postwar international institutions, leading to the incorporation of human rights into the Charter of the United Nations, which was adopted in San Francisco in the summer of 1945.

The Preamble of the U.N. Charter lists as two of the four principal objectives of the organization “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,” and “to promote social progress and better standards of life in larger freedom.” Likewise, Article 1 lists the achievement of “international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as one of the four purposes of the United Nations.

These statements were in themselves revolutionary. Even more radical was the creation in 1946 of the Commission on Human Rights under the auspices of the U.N. Economic and Social Council (ECOSOC). The Commission quickly began to define these abstract statements of postwar optimism and goodwill. The original Commission was composed of eighteen elected members who were broadly representative of the (then fifty-one) members of the United Nations. Its first task was to draft an “international bill of rights” that would include a declaration of principles and a legally binding human rights convention (treaty), along with institutions and procedures for their enforcement. The Commission quickly decided to focus its attention on the first part of the bill, which in 1948 became the Universal Declaration of Human Rights.

The initial drafts were written by John Humphrey, a young Canadian member of the Commission’s staff, and René Cassin, the French member of the Commission. There was widespread and essential participation, though, by non-Western representatives. The drafting committee included Peng-chun Chang of China (the vice chair of the Commission), Charles Malik of Lebanon (the rapporteur of the Commission), and Hernán Santa Cruz of Chile. Each, along with the chair of both the Commission and the drafting committee, Eleanor Roosevelt of the United States, played a major role in shaping the Declaration.

2 The Universal Declaration

By the fall of 1948, after barely a year and a half of work, the Commission had completed a brief statement of principles, adopted as the Universal Declaration of Human Rights by the U.N. General Assembly on December 10, 1948. (December 10 is thus celebrated globally as Human Rights Day.) The vote was forty-eight in favor, none opposed, with eight abstentions. Saudi Arabia abstained principally because of provisions that allowed Muslims to change their religion. South Africa abstained because of the provisions on racial equality. The six Soviet-bloc states (USSR, Byelorussian SSR, Czechoslovakia, Poland, Ukrainian SSR, and Yugoslavia) abstained (ostensibly) because the document was insufficiently detailed, especially with regard to the specific duties of individuals toward their states.

Although most of Africa, much of Asia, and parts of the Americas were still under colonial rule, the Universal Declaration had global endorsement. It received the votes of fourteen European and other Western states, nineteen states from Latin America, and fifteen from Africa and Asia. And the countries that later achieved independence were at least as enthusiastic in their embrace of the Declaration as those who voted for it in 1948. (It was unanimously endorsed by the representatives of twenty-nine independent Asian and African states who attended the summit held at Bandung, Indonesia in 1955.) In Africa in particular, the Universal Declaration was liberally referenced and frequently quoted in independence-era constitutions.

Article 1 of the Universal Declaration states its foundation: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The substantive bookend is Article 28: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”

In between, Articles 2–27 lay out a comprehensive set of rights that have come to define what we mean by internationally recognized human rights. Article 2 recognizes the right to nondiscrimination. An extensive series of civil and political rights are recognized in Articles 3–15 and 19–21, including rights to life, liberty, and security of person; an array of legal protections and civil liberties; and the right to political participation. Articles 16–18 and 22–27 recognize a wide range of economic, social, and cultural rights, including rights to an adequate standard of living, social security, work, rest and leisure, family, education, and participation in the cultural life of the community.¹

Even today the Universal Declaration provides the most authoritative statement of international human rights norms. It is the most translated document in human history, at 522 official translations.² This vital document is reprinted (in English) in the appendix.

3 The Covenants

The Universal Declaration of Human Rights is not, in itself, legally binding. (It describes itself as “a common standard of achievement for all peoples and all nations.”) The Commission thus moved immediately to drafting a treaty to give binding international legal force to international human rights norms. The initial 1947 draft “Covenant on Human Rights” was quite short—eighteen articles, focusing exclusively on civil rights. After quite a bit of debate, however, in 1950 the General Assembly directed the Commission to include economic, social, cultural, and political rights as well.

The new draft, though, was unwieldy. In addition, there was significant disagreement over monitoring and adjudication mechanisms and a proposed reporting procedure for economic, social, and cultural rights. Many on the Commission—mostly Western states—believed that the new draft should be divided into separate Covenants. Others—mostly from the Global South—disagreed, arguing that the indivisibility of human rights was paramount (see Chapter 4). After much debate, in both the Commission and the broader United Nations, the General Assembly in 1952 directed the ...