5.1 Historical Overview
When a government violates the human rights of its residents they may be able to appeal to the country’s laws or bill of rights and get a court to order that the violations stop and that the government provide remedies. If suitable national laws and bills of rights are unavailable, however, victims of human rights violations may seek help from international law and organizations. Traditionally, international law did not confer rights and protections on individual persons; its concern was exclusively the rights and duties of countries or states. Victims of human rights violations could appeal to heaven, and invoke standards of natural justice, but there were no international organizations working to formulate and enforce legal rights of individuals. After World War I the League of Nations had some success in using minority rights treaties to protect national minorities in Europe, but the effort ended with the rise of Nazi Germany and the beginning of World War II.
Countries fighting Hitler’s Germany decided that after their victory a new international organization would be needed to promote international peace and security, and that securing human rights in all countries would help lessen the dangers of falling back into large wars (Lauren 1998, Morsink 1999, Glendon 2001). Indeed, prior to the official formation of the United Nations, the Allies imposed human rights obligations on Italy and Central European powers in peace treaties. Similar obligations were imposed on Germany and Japan during the Allied occupation (Henkin 1999). The United Nations was created in 1945. Its Charter established goals of protecting future generations from the “scourge of war” and promoting “fundamental human rights” and the “dignity and worth of the human person.”
Not long after its founding the UN established a committee with the charge of writing an international bill of rights. This document was to be similar to historic bills of rights such as the French Declaration of the Rights of Man and of the Citizen (1789) and the United States Bill of Rights (1791), but was to apply to every person in every country. This international bill of rights emerged in December 1948 as the Universal Declaration of Human Rights (Morsink 1999, Lauren 1998). Although some diplomats had hoped for a binding human rights treaty that countries joining the UN would have to adopt, the Universal Declaration was a set of recommended standards rather than a binding treaty. By now, however, almost all of the norms in the Universal Declaration have been incorporated in widely-ratified UN human rights treaties.
The Universal Declaration has been astoundingly successful in setting the pattern for subsequent human rights treaties and in getting countries to include its list of rights in national constitutions and bills of rights (Morsink 1999). The Universal Declaration, and the treaties that followed it, largely define what people today mean when they speak of human rights. As we saw in Section 1 above, the Universal Declaration proposed six families of rights including security rights, due process rights, liberty rights, rights of political participation, equality rights, and social rights. The inclusion of social rights to goods such as education and an adequate standard of living took the Declaration beyond its 18th century antecedents (see Eide 1992).
The Universal Declaration was born at a time that made its success difficult. The Declaration’s approval by the General Assembly coincided with the beginning of the Cold War ? an ideological and geopolitical conflict between capitalist and communist countries that continued almost until 1990. Ideological differences and hostilities might have stalled the human rights movement if not for human rights advances in Europe. In the early 1950s Western European countries formed the Council of Europe and created the European Convention for the Protection of Human Rights and Fundamental Freedoms. This international treaty entered into force September 3, 1953, and was binding upon countries that ratified it. The European Convention established basic rights similar to those in the Universal Declaration, but included provisions for enforcement and adjudication. The European Convention gave birth to the European Court of Human Rights, whose job is to receive, evaluate, and investigate complaints, mediate disputes, issue judgements, and interpret the Convention. The human rights set forth in the Convention are legally enforceable rights to which member states are bound. In creating the European Convention and Court, the countries of Western Europe gradually proved that effective protection of human rights could be provided at the international level.
Inspired by the success of the European Convention, the United Nations followed a similar path, creating numerous treaties aimed at the enforcement and adjudication of the rights set forth in the Universal Declaration. These documents establish legal obligations among the ratifying countries to implement international rights within their national legal and political systems. By 2000 the main human rights treaties had been ratified by a large majority of the world’s countries. As Ann Bayefsky writes, “Every UN member state is a party to one or more of the six major human rights treaties. 80% of states have ratified four or more” (Bayefsky 2001).
Regional arrangements, similar to those in Europe, exist in the Americas and Africa (see 5.4.2 and 5.4.3 below). Efforts to protect human rights through international law have obviously not been totally successful ? lots of human rights violations still occur today in all parts of the world. International human rights law is a work in progress, and has developed much farther than one could have expected in 1950 or even in 1975.
5.2 United Nations Human Rights Treaties
International human rights treaties transform lists of human rights into legally binding state obligations. The first such United Nations treaty was the Genocide Convention, approved in 1948 ? just one day before the Universal Declaration. The Convention defines genocide and makes it a crime under international law. The Convention requires states to enact national legislation prohibiting genocide, to try to punish persons or officials who commit genocide, and to allow persons accused of genocide to be transported to countries capable of trying the charge. It also calls for action by UN bodies to prevent and suppress acts of genocide (Genocide Convention, articles 5, 7, 9). Currently the Genocide Convention has more than 130 parties (1948). The International Criminal Court, created by the Rome Treaty of 1998, is authorized to prosecute genocide at the international level, along with crimes against humanity and war crimes.
After the creation of the Universal Declaration, the Human Rights Commission proceeded to try to create treaties that would make the rights in the Universal Declaration into norms of international law. Because of the Cold War, the effort went ahead at a glacial pace. To accommodate the ideological division between those who believed in the importance of social rights and those who did not, or who thought that social rights could not be enforced in the same way as civil and political rights, the Commission ultimately decided to create two separate treaties. Drafts of the two International Covenants were submitted to the General Assembly for approval in 1953, but approval was much delayed. Almost twenty years after the Universal Declaration, the United Nations General Assembly finally approved the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights (both 1966). The Civil and Political Covenant contains most of the civil and political rights found in the Universal Declaration. The Social Covenant contains the economic and social rights found in the second half of the Universal Declaration. These treaties embodying Universal Declaration rights received enough ratifications to become operative in 1976 and have now become the most important UN human rights treaties. To date, these treaties have been ratified by about 75 percent of the world’s countries (See Status of Ratifications of the Principal Human Rights Treaties).
A country ratifying a UN human rights treaty agrees to respect and implement within domestic law the rights the treaty covers. It also agrees to accept and respond to international scrutiny and criticism of its compliance. It does not necessarily agree to make the human rights norm directly enforceable in domestic courts. That usually requires implementing legislation.
A common method of treaty implementation within the UN is the creation of a standing committee (or treaty body) to monitor states’ performance, and to which member states are required to submit periodic reports on compliance. The Civil and Political Covenant, which has been ratified by more than 150 countries, illustrates this approach. Rather than creating a human rights court, the Covenant created the Human Rights Committee (HRC), to promote compliance with its norms. The eighteen members of the HRC serve as independent experts rather than as state representatives. This potentially gives them some independence from the positions of their governments. The HRC frequently expresses its views as to whether a particular practice is a human rights violation, but it is not authorized to issue legally binding decisions (Alston and Crawford 2000).
The HRC is responsible for publishing “general comments” regarding the interpretation of the Civil and Political Covenant, reviewing periodic state reports on implementation of the Covenant, and receiving and investigating complaints of human rights violations made by states and individuals. The Committee holds public sessions in which it hears from non-governmental organizations such as Amnesty International and meets with representatives of the state making the report. The HRC then publishes “Concluding Observations” that evaluate human rights compliance by the reporting country. This process requires countries to hold discussions with the Human Rights Committee and have their human rights problems exposed to world public opinion. The reporting procedure is useful in encouraging countries to identify their major human rights problems and to devise methods of dealing with them over time. Unfortunately, the reporting system has few teeth when dealing with countries that stonewall or fail to report, and the Human Rights Committee’s conclusions often receive little attention (Bayefsky 2001).
In addition to the required reporting procedure, the HRC has the authority to consider state complaints, alleging human rights violations by another member state (see article 41). The Civil and Political Covenant also has an optional provision requiring separate ratification that authorizes the HRC to receive, investigate, and mediate complaints from individuals alleging that their rights under the Covenant have been violated by a participating state (Joseph, Schultz, and Castan 2000). By 2006, 105 of the 155 states adhering to the Covenant had ratified this optional provision.
Many other UN human rights treaties are implemented in roughly the same way as the Civil and Political Covenant. These include the International Convention on the Elimination of All Forms of Racial Discrimination (1966), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention on the Rights of the Child (1989), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Migrant Workers Convention (1990). These human rights treaties create their own treaty bodies to monitor compliance and implementation. The proliferation of treaty bodies and reporting requirements has led to considerable overlap and inefficiency within the UN human rights system (Bayefsky 2001).
The standard UN system for implementing human rights not very powerful. It is stronger on the promotion of human rights than on their protection through adjudication. Unlike the regional systems in Europe and the Americas, it does not have an international human rights court with powers to order states to change their practices or compensate a victim. Its tools are largely limited to consciousness-raising, persuasion, mediation, and exposure of violations to public scrutiny.
5.3 Other United Nations Human Rights Agencies
Human Rights treaties are only one part of the UN’s human rights program. In fact, the UN has several agencies and courts, independent of its human rights treaties, to address continuing human rights abuses. Three notable agencies are the High Commissioner for Human Rights (OHCHR), which serves as a full-time advocate for human rights within the UN; Human Rights Council, which took over the main functions of the now defunct Human Rights Commission in addressing gross human rights violations; and the Security Council, which has the authority to impose diplomatic and economic sanctions, sponsor peacekeeping missions, and authorize military interventions in cases of human rights emergencies.
5.3.1 The High Commissioner for Human Rights
In 1993, following recommendations included in the World Conference on Human Rights in Vienna, the United Nations General Assembly established the office of the High Commissioner for Human Rights as part of the UN Secretariat. The OHCHR coordinates the many human rights activities within the UN, working closely with treaty bodies, such as the Human Rights Committee, and other UN agencies such as the Human Rights Council. The High-Commissioner assists in the development of new treaties and procedures, sets the agenda for human rights agencies within the UN, and provides advisory services to governments. Most importantly, the High Commissioner serves as a full-time advocate for human rights within the United Nations (Korey 1998). The OHCHR also has field offices throughout the world, including offices in Central Asia, East and Southern Africa, the Pacific, Latin America, and the Middle East.
5.3.2 The Human Rights Council
In 2006 the longstanding UN Human Rights Commission was replaced by a new Human Rights Council. The Human Rights Commission was a 56 member committee, authorized by the UN Charter, consisting of state representatives. The stated goals of the replacement were to eliminate “double standards and politicization.” The new Council’s responsibilities include “promoting universal respect for the protection of all human rights,” addressing gross human rights violations, making recommendations to the General Assembly, and “responding promptly to human rights emergencies.” The Council’s other responsibilities include providing direct assistance to UN member states to help them meet their human rights responsibilities through communication, technical assistance, and capacity building.
The Council consists of 47 members, elected directly and individually by the General Assembly with membership based on equitable geographic distribution. Council members serve terms of three years, with a limitation of no more than two consecutive terms. Procedures for Council membership are aimed at keeping countries with very poor human rights records off the Commission. Members must be elected by an absolute majority of the General Assembly, requiring 96 votes in a secret ballot, rather than a simple majority of General Assembly members present. The General Assembly also acts as a check on the Council, with the ability to suspend Council members whose countries commit gross human rights violations. The Council will meet no fewer then three times per year for at least ten weeks, with the ability to hold special sessions when necessary. For now the Council will adopt the procedures and responsibilities of the Human Rights Commission, but has a year to review and change them.
5.3.3 The Security Council
The Security Council’s mandate under article 24 of the UN Charter is the maintenance of international peace and security. The fifteen-member body consists of 5 permanent and 10 elected members. Nine votes are needed to approve any measures. Any of the five permanent members (China, France, Russia, the United Kingdom, and the United States) can exercise their veto power to prevent a given action from succeeding. The permanent membership of five countries, with their veto power, is a clear concession to economic and military power within the Security Council. The Security Council can issue binding decisions regarding international security or peace, authorize military interventions and impose diplomatic and economic sanctions (Bailey 1994, Ramcharan 2002).
5.4 Regional Human Rights Systems
Regional arrangements supplement the UN system by promoting and protecting human rights in particular parts of the world. Three regions ? Europe, the Americas, and Africa ? have formulated their own declarations and conventions for the protection and enforcement of human rights. Because of their locations, regional agencies and courts have better chances of effectively investigating alleged violations promptly and securing relief for victims. Regional agencies are also likely to be more attuned to the culture and identity of the region and may accordingly have a deeper understanding of problems, circumstances, and possible reforms.
5.4.1 The European System
The European Convention for the Protection of Human Rights (1950) demonstrated to the world the possibility of enforcing internationally human rights norms. Article 3 of the Statute of the Council of Europe requires member states to accept the principles of human rights and fundamental freedoms within their jurisdictions. The Council even defines its post-1989 role as that of a “human rights watchdog” for post-communist European countries (see About the Council of Europe). During its 57 year history, membership in the Council of Europe has more than doubled-currently the Council has over 45 member states, 21 of which are Central or Eastern European states.
The European Convention formulates human rights norms, legally binds member states to respect these norms, and creates a system of adjudication and enforcement. The European Convention’s commitment clause requires all member states to secure these fundamental rights to every person within their jurisdictions. The first section of the European Convention then sets forth the fundamental rights covered in the convention, while the second section establishes the European Court of Human Rights.
The rights set forth in the European Convention are similar to the first twenty-one articles of the Universal Declaration, covering standard civil and political rights. Social rights were treated in a separate document, the European Social Charter. The European Convention defines its rights in greater detail than the Universal Declaration. A good example of this is seen in the right to life. While the Universal Declaration simply sets forth, “[e]veryone has the right to life?,” the European Convention’s formulation is far more specific, requiring a mens rea as a necessary condition for violation and defining specific exceptions to this right (see article 2).
The European system originally had both a Commission and a Human Rights Court to ensure that member states fulfilled their human rights obligations. In 1998, the European Convention was amended to abolish the Commission, expand and reorganize the Court, and make the Court a full-time operation. Countries that ratify the European Convention agree to respect and implement a list of rights, but they also agree to the investigation, mediation, and adjudication of human rights complaints. The European Court of Human Rights, based in Strasbourg, France, is composed of one judge from each participating state in the Council of Europe. The judges, however, are appointed as independent jurists rather than as state representatives. Citizens from the participating countries with human rights complaints who have been unable to find a remedy in their national courts may petition the European Court of Human Rights. Complaints by governments about human rights violations in another participating country are also permitted, but are rarely made. If the Court agrees to hear a complaint, it investigates and adjudicates it. Before issuing a judgment, the Court attempts to mediate the dispute. If conciliation fails, the Court will issue a judgment with supporting judicial opinions and impose a remedy. Through this process a large body of international human rights jurisprudence has developed (Jacobs and White 1996; Janis, Kay and Bradley 1995).
Participating governments almost always accept the Court’s judgments. Compliance occurs because governments are committed to the European Convention and to the rule of law, and because their membership in good standing in the Council of Europe would be endangered were they to defy the Court.
5.4.2 The Inter-American System
The Organization of American States (OAS) is the oldest regional organization of states. In 1948, 21 states signed the OAS Charter, establishing the regional organization and affirming their commitment to democracy, liberty, and equality before the law. One OAS principle, set forth in article 3 of the charter, is the “fundamental rights of the individual without distinction as to race, nationality, creed, or sex.” The Inter-American system consists of two main documents, the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights ; and two main treaty bodies, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights . All 35 of the independent countries in the Americas currently comprise the Organization of American States.
Even before the UN adopted the Universal Declaration, the Organization of American States approved the American Declaration (1948). Like the Universal Declaration, the American Declaration encompasses the entire range of human rights. Additionally, the declaration includes an explicit list of duties, ranging from general duties toward society and one’s children, to an individual’s duty to vote, work, and pay taxes (articles 29-38).
Despite its early beginnings, the Inter-American system of human rights progressed more slowly than its counterparts. Not until 1969 did the OAS adopt the