L E S SON 1

THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW

Learning outcomes:
(a) Define the concept “international human rights law”
(b) Explain the relationship between international human rights law and other branches
of public international law.
(c) Discuss the development of international human rights law.
(d) Identify and discuss the relative importance of the sources of international human
rights law.
(e) Evaluate the implementation and enforcement of international human rights law.

International human rights law as a branch of public international law.

International human rights law (IHRL) is a branch of public international law (PIL). PIL is
defined as a set of rules and principles that regulates the relations between states per
se, between states and international organisations and between international
organisations per se. Some of these rules and principles concern the protection and
promotion of human rights and constitute IHRL. States and international organisations
are the subjects of PIL.

International human rights law.

The concepts “human rights” and “human rights law” form the bedrock of the concept
“international human rights law”.

Human rights.

Human rights is generally defined as denoting a “special kind of moral claim” that all
humans may invoke by virtue of being human beings.

Human rights law.

Human rights law (HRL) consists of rules and principles that relate to the protection of
human rights. Therefore, IHRL may be defined as a branch of PIL that consists of rules
and principles that protect and promote individual and collective human rights. It
therefore deals with the protection and promotion of human rights at the international,
regional, sub-regional and national/municipal level.
CONVERGENCE BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND OTHER
BRANCHES OF PUBLIC INTERNATIONAL LAW

PIL regulates the relationships between states per se, between states and international
organisations and between international organisations per se. Under IHRL, the state is
still there but the other subject involved is “the individual”. The function of IHRL is to
protect the individual (or group of individuals) against the power of the state. This
feature distinguishes IHRL from other branches of PIL, such as international
humanitarian law, international criminal law and refugee law. Therefore, IHRL begins
where traditional PIL ends, making the individual a key player on the international
scene.

International human rights law and humanitarian law.

Humanitarian law (HL) is that part of the law of war that deals with human rights. Its
importance to this section of the course lies in the way in which international law was
used, through the conclusion of treaties, to protect the individual combatant (fighter on
the ground). HL in fact predated modern IHRL by quite some time. Accordingly, this was
a reasonably “revolutionary” concept for its time and it certainly contributed to the
development of modern IHRL and the recognition of the individual within international
law. IHRL and HL are both branches of PIL and both are aimed at protecting human
rights.
However, they differ on several grounds. First, IHRL protects human rights in any
circumstances, while HL is a more specialised branch of IHRL since it is aimed at
protecting and promoting human rights such as the rights of civilians, wounded and
prisoners in situations of war and armed conflicts (internal and international armed
conflicts). Second, IHRL and HL each has its own sources. HL is mainly based on the
Geneva Conventions and the protocols to these conventions while IHRL is based on
international human rights treaties.

NB: Humanitarian law should be distinguished from humanitarian intervention, which may be
defined as joint or individual use of force by one or more states/ international organisations to stop a
state from treating its own nationals in a way that is so brutal and large scale that it shocks the
conscience of humankind.

International human rights law and international refugee law

IHRL and international refugee law (IRL) are also branches of PIL. While IHRL is more general
and protects human rights of all human beings, IRL is mainly concerned with the protection of
the rights of asylum seekers and refugees. Asylum seekers are those people who have fled
persecution from their national authorities and seek protection or asylum in foreign countries.
The situation of asylum seekers is a temporary one. Once they have been granted refugee status,
they cease being asylum seekers and become refugees. Refugees’ rights are protected by
conventions adopted within international organisations. The UN, for instance, adopted a
convention and a protocol to protect the rights of refugees. At the regional and African level, a
treaty was adopted within the
Organisation of African Unity (OAU, now African Union) in 1969 to protect refugees’ rights in
Africa.

International human rights law and international criminal law.

IHRL is also close to international criminal law (ICL). ICL consists of rules and principles
that define international crimes and the sanctions attached to these crimes and
establishes institutions to punish these crimes. Treaties and conventions that define and
punish the crimes of genocide, war crimes and crimes against humanity or aggression
belong to both IHRL and ICL. The Rome Statute (otherwise known as the Statute of the
International Criminal Court) established the International Criminal Court (ICC). Other
statutes established international criminal tribunals, such as the International Criminal
Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for
Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). Therefore, ICL
punishes individual perpetrators while IHRL holds states accountable for human rights
violations. The overlap between these systems is that they both uphold the values of
human life and dignity.

DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW

International human rights law as a branch of public international law.

IHRL forms part of PIL and, is closely related to that of PIL. It protects human rights at the
international level, Historically, PIL has regulated relations between states. It is referred to as public
international law in the sense that it is: “public” because it deals primarily with the state rather than
the individual; “international” because it deals with relations between nations represented by states;
and “law” because it comprises a set of rules. Since “law” is a dynamic concept, the instruments used
to regulate relations became more sophisticated
as the needs of commerce became more sophisticated. There was a move towards “world
government” through organisations that deal with issues as varied as peace (e.g., the UN),
international labour (e.g., the International Labour Organisation) and commodity prices (e.g., the
International Tin Council).

This gave rise to the birth of international organisations, which later became subjects of PIL. Due to
the role of the individual in trade, in wars, there was a need to re-evaluate the position of the
individual in PIL. The emergence of the individual in international law occurred because of the
atrocities of two world wars, the emancipation of colonial territories and the urge of the individual
for an acknowledgement of his/her human rights and the right to self-determination.
All these developments led to the development of international human rights as a specialised branch
of PIL, particularly after the end of the Second World War, the founding of the UN in 1945 and the
adoption of the Universal Declaration of Human Rights (UDHR) in 1948.

International human rights law as a specialised branch of public international law.

The development of IHRL presupposes the existence of states and international
organisations and the emergence of the law of treaties. States engaged in the
conclusion of treaties to create international organisations aimed at protecting human
rights, or in the development of customary international laws. The creation of the UN
constitutes a major step in the evolution of modern IHRL. Accordingly, the development
of IHRL may be divided into two periods: before and after the creation of the UN.

International human rights law before the creation of the UN

The primary sources of HL are the Geneva Conventions, which are the codification of
customary international law dealing with the law of war. The Geneva Conventions
comprise four treaties and three additional protocols. The treaties that later became
known as the Geneva Conventions were first adopted in 1864, 1906 and 1929. The
Geneva Conventions adopted in 1949 protect people who do not take part in fighting
and those who can no longer fight. The International Labour Organisation (ILO) was
created in 1919 before the creation of the UN as part of the Treaty of Versailles, which
ended World War I. However, even before 1919, labour was organised as early as 1901
by the International Association of Labour Legislation. The Preamble of the ILO
Constitution addressed issues such as regulation of working hours, protection of
workers against sickness and recognition of the principle of equal remuneration.
On the other hand, the human rights movement was behind the adoption of the
Covenant of the League of Nations in 1919. However, there is little mention of human
rights in this document, except briefly in Articles 22 and 23. Article 22 deals with the
mandate system of the League of Nations while article 23 provides for international
labour standards, and fair and humane conditions of labour for men and women.

International human rights law after the creation of the UN.

The UN Charter was signed in San Francisco, USA, in 1945. The primary objective of the UN is “to
maintain international peace and security”, which also entails the protection and promotion of human
rights and the development of international human rights law. The Preamble of the UN Charter
declares the UN’s determination to reaffirm faith in fundamental
human rights, in the dignity and worth of the human person, and in the equal rights of men and
women and of nations large and small. Article 1(3) of the UN Charter states that one of the purposes
of the UN is to promote and encourage respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion. This is also provided for in Article 55 of the
UN Charter.
The UN Charter established the Economic and Social Council (ECOSOC) to initiate studies and
reports on international economic, social, cultural, educational, health and other matters and to make
recommendations regarding such matters to the General Assembly of the UN and the specialised
agencies concerned. Article 62(2) of the UN Charter provides that ECOSOC may make
recommendations for the purpose of promoting respect for, and observance of, human rights and
fundamental freedoms for all. ECOSOC was also mandated to establish a Commission on Human
Rights (CHR), which, among other things,
was tasked with preparing the Bill of Rights. The CHR was established in 1946 and its first session
was held in 1947. There was division over whether this Bill of Rights should be a declaration or a
binding convention but later it was decided that the Bill of Rights should consist of a declaration, a
convention and “measures of implementation” (i.e., a system of international supervision)
(Rehman:2012). IHRL therefore developed considerably after the adoption of the UN Charter. This
development occurred at the universal, regional, subregional and domestic level.
At the universal/global level, this development saw the adoption of three major documents known as
the International Bill of Rights. The UDHR was adopted on 10 December 1948. The two binding
conventions were adopted in December 1966 as the Covenant on Economic, Social and Cultural
Rights (ICESCR) and the Covenant on Civil and Political Rights (ICCPR) and came into force in
1976.

INTERNATIONAL HUMAN RIGHTS LAW AND MUNICIPAL LAW

Sovereignty and erosion of sovereignty.

Under PIL, states are independent and sovereign in the sense that they are entitled to
regulate their internal affairs without any foreign interference. IHRL has, however,
eroded the absolute nature of sovereignty since it is treaty-based law. Therefore, by
entering or ratifying multilateral treaties, states allow their sovereignty to be encroached
on or limited. One of the effects of a treaty between parties is pacta sunt servanda,
which means that treaties are to be complied with in good faith. Under many human
rights treaties, states accept the competence of independent international bodies to
supervise their compliance with the treaties. States sometimes allow nationals to bring
complaints against them before the implementing mechanisms of treaties, such as
national bodies of independent experts created under treaties.

Effects of international human rights law at the national/municipal level.

The relationship between international law and national law poses two major questions:
Can norms of international law be invoked as part of a municipal (domestic/national)
legal system?
If so, what is the relative weight of the international system and the municipal system?
Two approaches to the relationship between international law and national law are
usually juxtaposed. These approaches are dualism and monism.
Dualism is a doctrine according to which international law and domestic law are
fundamentally different. PIL cannot apply directly in domestic law. For it to apply, it has
to be “transformed” or incorporated into domestic law by legislation. Transformation
requires amendments to existing laws or the adoption of new domestic legislation in line
with a treaty. Incorporation entails the wholesale inclusion of a treaty into national laws.
Many countries that were colonised by Britain adopted dualism.

Monism is a doctrine according to which international law and domestic law are two
aspects of the same law. Therefore, international law becomes part of national law upon
ratification. There is no need for “enabling legislation’ “to be enacted by parliament to
give a treaty effect in domestic law. Most Francophone countries are monist.

The principle of subsidiarity and the application of international human rights law
at the national/municipal level
Subsidiarity means that IHRL co-exists with domestic law and complements it without
replacing it. States have the primary responsibility for protecting human rights law but
should do so in line with international law. The principle of subsidiarity manifests in
several ways. Under the European human rights system, the European Court of Human
Rights (ECtHR) developed the concept “margin of appreciation”, in terms of which
states are granted a degree of latitude in matters related to the balancing of individual
and public interests, especially when moral issues are involved. Further, subsidiarity is
also reflected in the requirement of exhaustion of local remedies. This means that in
cases where a treaty allows an individual to complain against the state, the state must
first be given notice of the violation in question so that it can enforce its obligations.
The individual can only approach international bodies when the state fails to live up to
its undertakings under the treaty. The only instance where an individual is exempted
from exhausting local remedies is when there is no effective remedy or when domestic
processes are unduly prolonged.

SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW

Sources of IHRL refer to the instruments from which it originates and where it may be found. Some
of these sources are binding and others are not binding and generally referred to as soft law.

Binding sources.
Sources of IHRL are found in the Statute of the International Court of Justice (ICJ).

(a)In terms of Article 38(1) of the Statute, sources of IHRL include (a) international
conventions (treaties), whether general or particular, establishing rules expressly
recognised by the contesting states.
(b) international custom, as evidence of a general practice accepted as law (custom,
with its two legs of usus and opinio iuris).
(c) the general principles of law recognised by civilised nations (jus cogens).
(d) Judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as a subsidiary means to determine the rules of law.

Treaties

IHRL is essentially treaty-based law at all levels and, as such, treaties count as its most
important sources. Treaties are also called covenants, charters, pacts, declarations,
protocols and conventions. Article 2 of the Vienna Convention on the Law of Treaties
(VCLT) of 1969 defines a “treaty” as an international agreement concluded between
states in written form and governed by international law. Treaties can be bilateral or
multilateral Treaties are binding between states.
International custom

Customary international law plays a major role in circumstances where a certain human
right is not covered by the treaties to which a state has agreed. Usus (state practice)
and opinio iuris (acceptance of practice as law) are the basic requirements for a practice
to qualify as international custom. Such state practice must be uniform and consistent.
Not all international custom can be regarded as a source of IHRL but only that which
protects or promotes human rights at the international level.

General principles of law recognised by civilised nations.

The existence of a general principle is established by looking at different systems and finding a rule
common to all (or most) of them. No one has to consent to that rule being there – it simply is.

Non-binding sources or soft law.

Non-binding sources or soft law refers to the rules of conduct that do not create legal
obligations but that nonetheless set standards or form part of the lawmaking process.

IMPLEMENTATION AND ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS

LAW.

IHRL is justiciable and enforceable. Enforcement in this regard refers to the conversion
of an international decision into an effective domestic remedy. Implementation refers to
all other means of giving effect to treaty provisions, pronouncements by treaty
monitoring bodies (TMBs) and compliance with treaty obligations. Implementation or
monitoring bodies can be categorized on the basis of the various levels at which they
were established, namely, at the universal or UN level, at the regional level and at the
domestic level.

Implementation at the UN level.

At the UN level, a number of TMBs have been established by various UN human rights treaties.
These TMBs are quasi-judicial bodies and, as such, their decisions are non-binding. Some of the
well-known TMBs are the Human Rights Committee created under the
ICCPR, the Committee on the Elimination of Discrimination against Women created by CEDAW
and the Committee on the Rights of the Child created by the CRC. Specific procedures for
approaching these bodies generally include state reporting, interstate communications and individual
communications (normally subject to the state party having made a declaration provided for by a
treaty). In response, these bodies usually make general comments, issue concluding observations or
do an investigation before making their observations.

Implementation at the regional level.

At the regional level, there are courts and commissions that have a role to play. The
courts are judicial bodies that give binding decisions while the commissions are quasi-
judicial bodies that only make recommendations. In Europe, there is the ECtHR;
America has the Inter-American Court of Human Rights (IACrtHR) and Africa has the
African Court on Human and Peoples’ Rights (ACrtHPR).These courts have both
contentious jurisdiction, which is the competence to decide disputes between parties,
and advisory jurisdiction, which is the power to give interpretative guidelines like
recommendations. America and Africa also have commissions that are responsible for
the interpretation of regional human rights treaties. These commissions consider cases
generally known as communications or petitions but lack the competence to give
binding decisions and, as such, their decisions are just recommendations.

Implementation at the domestic level.

At the domestic level, courts of law, which are judicial bodies, have a role to play in the application
and implementation of IHRL. They decide which rights have been violated and what remedies should
be given. Courts may also use IHRL as an interpretative guide. At the national level, non-judicial or
quasi-judicial bodies such as national human rights institutions (e.g., human rights commissions) play
a role in the implementation of IHRL. Other institutions that support democracy can also implement
or monitor the application of IHRL at the municipal level.

OTHER REGIONAL AND SUB-REGIONAL HUMAN RIGHTS SYSTEMS

Arab, Muslim and Asian human rights systems

Asia’s regional human rights system is not as developed as the human rights systems
of Europe, America and Africa. The development of Asian’s regime took place at the
sub-regional level rather than the regional level. It was only in 2007 that the Association
of Southeast Asian Nations (ASEAN), which consists of 10 states, adopted the ASEAN
Charter. An ASEAN human rights body, the ASEAN Intergovernmental Commission on
Human Rights (AICHR),was established in 2009 in terms of the ASEAN Charter. The
AICHR’s duty is to promote and protect human rights and fundamental rights. There is
no human rights treaty in Asia – only developments to adopt a Declaration of Human
Rights.
The Arab human rights system consists of the predominant Arabic organisation, the
League of Arab States. It was founded in 1945 and does not comment on human rights
principles. The Arab Charter on Human Rights was adopted in 1994 and did not retain
enough ratifications for entry into force until the adoption of the 2004 Arab Charter on
Human Rights, which entered into force in 2008. This Charter establishes the Arab
Human Rights Committee, whose only duty is to examine reports submitted by state
parties every three years.The Arab Charter falls short of international standards in that it
has a number of clauses that make it subject to domestic laws, and it restricts certain
rights to citizens only even though those rights are not political rights.

The Islamic human rights system consists of the predominant Islamic organisation,the Organisation
of Islamic Cooperation (OIC). The OIC was established in 1969 and its members are located on at
least four continents. Its objective is to promote and protect human rights. Its effectiveness is
impeded by the principle of non-interference in the internal affairs of other states. Under the OIC
there is a Human Rights Commission, whose mandate is to provide technical assistance and to raise
awareness about human rights. The Cairo Declaration on Human Rights in Islam is the main human
rights treaty; however, its effectiveness is limited by a provision that stipulates that all rights and
freedoms are subject to Islam’s Sharia, which limits rights such as life.
REGIONAL ECONOMIC COMMUNITIES AND HUMAN RIGHTS.

Sub-regional mechanisms do not really deal with human rights but address issues relating to political
and economic integration. In Africa there are groupings known as regional economic communities
(RECs), such as the Southern African Development Community (SADC) and the Economic
Community of West African States (ECOWAS). RECs can play a vital role in promoting and
protecting human rights and this can be seen in the way some RECs have adopted principles of
human rights and addressed issues ranging from HIV/
AIDS and human trafficking to issues relating to equality and gender.

CONCLUSION

This lesson dealt with the development of IHRL as well as the framework governing this field of law.
This lesson highlighted the major role that the UN played in the development of IHRL. The adoption
of three major treaties (i.e. The UDHR, the ICCPR and the ICESCR) that are generally referred to as
the International Bill of Rights paved the way for the development and enforcement of IHRL at the
global, regional and domestic level. Many other conventions and resolutions were adopted to protect
and promote human rights post 1948.In the next lesson you will learn more about the normative and
institutional framework of human rights protection at the UN level, with specific reference to specific
human rights treaties and the role of treaty monitoring bodies.