How are human rights legislated across the globe?
International Human Rights Instruments
Let’s turn now to the human rights instruments themselves.
The International Bill of Human Rights contains the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR).
The UDHR, adopted in 1948, is a non-binding declaration that outlines fundamental human rights to be universally protected. The ICESCR and the ICCPR, on the other hand, are legally binding treaties that came into force in 1976 and commits its parties to work towards granting economic, cultural, and political rights to individuals.
These instruments have provided a framework for the development of national and international legislation, such as the European Convention of Human Rights and, subsequently, the European Court of Human Rights.
Additionally, they have been used to interpret and apply human rights norms by courts and tribunals around the world. Examples of their influence can be seen in the adoption of national human rights legislation, such as the United States’ Civil Rights Act of 1964 and the United Kingdom’s Human Rights Act of 1998.
Regional Human Rights Instruments
Regional human rights instruments, such as the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR), play an important role in localising the protection of human rights.
The ECHR, adopted in 1950 by the Council of Europe, guarantees a range of civil and political rights to individuals within its jurisdiction. The ACHR, adopted in 1969 by the Organization of American States, seeks to protect civil, political, economic, social, and cultural rights in the Americas. Both instruments have established regional human rights courts – the European Court of Human Rights and the Inter-American Court of Human Rights, respectively – which hear cases and issue judgments on alleged human rights violations.
These regional instruments and their corresponding courts have provided a more accessible and tailored approach to human rights protection, taking into account the specific historical, cultural, and political contexts of their regions. They have also fostered cooperation and dialogue among states, promoting the sharing of best practices and the harmonization of human rights standards.
Examples of the impact of these regional instruments include the European Court of Human Rights’ judgment in the case of Dudgeon v. United Kingdom (1981), which found that laws prohibiting homosexual relationships construed an unjustified interference of the right to respect for private life (in breach of article 8 ECHR).
Customary International Law
Customary international law protects an individual’s human rights when there is a gap in treaty legislation. An example is the prohibition of torture, which is considered a customary international law norm, binding on all states regardless of whether they have ratified the convention. Customary international law therefore plays a crucial role in the protection of human rights during armed conflicts, prohibiting the targeting of civilians and ensuring that prisoners of war are treated humanely.
Furthermore, customary international law can influence the interpretation and application of treaty law. For instance, when interpreting the provisions of human rights treaties, courts and tribunals may refer to customary international law to clarify the meaning and scope of specific rights.Though human rights treaties aim for blanket coverage, it is inevitable that there will be gaps or loopholes in application. Customary law protects individuals in such instances.
Human Rights Courts and Tribunals
As their names suggest, the International Criminal Court (ICC) and the International Court of Justice (ICJ) are two international human rights courts, dealing with criminal and civil law respectively.. The ICC, established in 2002, is a permanent international tribunal that prosecutes individuals for the most serious crimes of international concern, including genocide, crimes against humanity, and war crimes. The ICJ, on the other hand, is the principal judicial organ of the United Nations, established in 1945. It primarily deals with disputes between states, including those related to human rights issues.
Individuals cannot bring cases before the ICJ, and the court is unable to enforce its rulings; however, it still possesses great authority in the international arena. For example, the court found the Israeli West Bank barrier illegal under international law in an advisory opinion published in 2004.
The ICC seeks to complement national criminal systems, prosecuting individuals only when the State concerned is unwilling to do so. The first person to be convicted by the ICC was Thomas Lubanga from the Democratic Republic of Congo, who was found guilty of conscripting children under the age of 15 to fight as child soldiers. On the 17th March 2023, the ICC issued an arrest warrant against Vladimir Putin in relation to Russia’s illegal invasion of Ukraine.
State Responsibility
In the context of international law, state responsibility holds states accountable for respecting, protecting, and fulfilling human rights. It is based on the principle that states are the primary duty-bearers in the international legal system. State responsibility can be engaged in various ways, such as through the direct actions of state organs, the failure to prevent human rights violations by non-state actors, or the failure to investigate and punish violations when they occur.
Examples of state responsibility in the human rights context include the United States’ responsibility for the treatment of detainees at Guantanamo Bay, and Russia’s responsibility for human rights violations in Chechnya. These cases demonstrate the importance of state responsibility as a means of ensuring accountability and redress for human rights violations.
State responsibility is essential for ensuring that individuals are able to access justice and receive reparations for violations of their human rights.
Human Rights Defenders
Human rights defenders are individuals and groups, such as activists, journalists, academics, and politicians, who work to promote and protect international human rights. Despite facing risks and challenges, such as harassment, intimidation, violence, and even assissination attempts, they fearlessly continue to fight for the improvement of human rights conditions around the world.
Their efforts have led to the adoption of new legislation, the establishment of human rights institutions, and the prosecution of human rights violators. They have also contributed to the development of human rights jurisprudence by bringing cases before national and international courts and tribunals.
Notable human rights defenders include Malala Yousafzai, the Pakistani activist for female education and the youngest Nobel Prize laureate, and the assassinated Russian journalist Anna Politkovskaya, who reported extensively on human rights abuses in Chechnya. Their courage and dedication serve as an inspiration to others in the ongoing struggle for human rights.
Limitations and Derogations
One of the oddities of human rights law is the understanding that certain limitations and derogations may be necessary in specific circumstances. Limitations are restrictions on the exercise of human rights that are permissible under certain conditions, while derogations are temporary suspensions of certain human rights obligations in times of emergency. Both must meet strict criteria to be considered lawful, such as being provided for by law, pursuing a legitimate aim, and being necessary and proportionate to the achievement of that aim.
The Covid-19 pandemic highlighted the importance of understanding the permissible limitations and derogations in human rights law. Stay-at-home orders and other public health measures have had significant implications for the enjoyment of human rights, such as the right to freedom of movement and the right to work. Courts and tribunals have had to balance the need to protect public health with the obligation to respect and protect human rights.
This delicate balancing act demonstrates the complexity and nuance of human rights law, as well as the importance of ensuring that limitations and derogations are applied in a manner that is consistent with international human rights standards. It is essential to consider the implications of impinging an individual or group’s human rights, and to ensure that when it is done, it is necessary and proportionate to the desired aim.
