Human rights mechanisms and international law

By Elizabeth Willmott-Harrop

January 2001

This article assesses the legal status of various human rights instruments and illustrates the significant and growing impact of human rights on the development of international law.

In his book, International Law, Antonio Cassese affirms that human rights doctrines have helped “…shift the world community from a reciprocity-based bundle of legal relations, geared to the ‘private’ pursuit of self-interest, and ultimately blind to collective needs, to a community hinging on a core of fundamental values, strengthened by the emergence of community obligations and community rights and the gradual shaping of public interests.”

Below I will look at five examples of human rights tools, beginning with the Universal Declaration of Human Rights.

1. The Universal Declaration of Human Rights

Introduced in 1948 by a UN General Assembly Resolution, with the aim of exerting a moral and political influence on states, the Universal Declaration of Human Rights (UDHR) is one of the best known and most widely cited human rights documents in the world.

The declaration itself is not a legally binding document, but takes the form of a recommendation by the United Nations General Assembly to member states.

This lack of legal status, however, has not prevented its significant influence in formulating legislation at a domestic and international level. Indeed the General Assembly refers to its desire to encourage “the progressive development of international law and its codification” in article 13 of the UDHR.

In terms of its influence, its principles are enshrined in and are the inspiration of the constitutions and national legislation of many newly independent states, which often seek to embody the spirit of democracy which is promoted by the UDHR (see for example article 21 of the Universal Declaration of Human Rights).

At a regional level, references to the declaration have been made in the charters and resolutions of regional intergovernmental organizations as well as in treaties and resolutions adopted by the United Nations system. The UDHR is said, by the United Nations High Commission for Human Rights, to have inspired more than 60 human rights instruments, which together comprise an international standard of human rights.

Among these instruments are the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both of which refer to the UDHR explicitly in their preambles. Both the ICESCR and the ICCPR are legally binding treaties and, with the UDHR, form the International Bill of Rights. To illustrate the impact of the UDHR on these treaties, just compare some of the articles, for example article 19 of the UDHR and article 19 of the ICCPR, both of which talk about freedom of opinion and information.

As the United Nations human rights system undergoes constant evolution and development, so too the principles embodied in its treaties continually give rise to new instruments, which again carry the original influence of the UDHR. Examples include the Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination.

This latter convention, in a reflection of article 7 of the UDHR, declares dissemination of ideas based on racial superiority or hatred as being punishable by law. An example of this in practice is the sentencing by the International Criminal Tribunal for Rwanda in June 2000 of former radio presenter Georges Omar Ruggiu after he pleaded guilty to inciting genocide.

The incorporation of the principles of the UNDHR into domestic legislation is one argument used to show that the declaration has now become part of the body of customary law. Other examples of opinio juris include references in UN resolutions and declarations to the duty of states to observe the UDHR and decisions in national courts that refer to the UDHR as a source of standards for judicial decision.

However, evidence of state practice is also required to support these rights becoming part of customary international law, evidence of which is harder to come by. As Oscar Schachter notes in Steiner and Alston’s International Human Rights in Context, “Constitutions with human rights provisions that are little more than window-dressing can hardly be cited as significant evidence of practice…”.

Schachter concludes that although some important human rights included in the declaration have become customary law, neither governments nor courts have accepted the Universal Declaration of Human Rights “as an instrument with obligatory force”.

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2. The International Covenant on Civil and Political Rights

Adopted and opened for signature, ratification and accession by a General Assembly resolution in 1966, the International Covenant on Civil and Political Rights (ICCPR) entered into force 10 years later in 1976.

The ICCPR is a legally binding treaty. This means that states which ratify the treaty are legally bound by it, while states that do not are neither bound by the treaty obligations or entitled to invoke those obligations against other state parties.

Comprehensive implementation measures, which themselves contain legal obligations, are contained in the second article which includes the adoption of “legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant” (paragraph 2 of article 2, ICCPR).

The reporting procedure for state parties to the ICCPR is laid out in article 40 of the covenant. Although a legally binding instrument, the system does has its limitations in terms of effectively enforcing implementation of the covenant.

As discussed by Ineke Boerefijn in Human Rights Quarterly, the initial stage of implementation is at the behest of the state, which must first ratify the ICCPR. Then, once a party to the covenant, the system requires a minimum level of voluntary cooperation by the state. In Boerefjin’s opinion, there are no effective sanctions for noncompliance with the obligations state parties have accepted.

So although the ICCPR does have legal status in International Law, this does not necessarily make it wholly effective. As Louis Henkin comments: “States have not yet wholly assimilated the fact that they have an international obligation to respect the rights of their citizens, that an act of torture or other inhuman treatment, for example, is a violation of international law.”

The only steps the Human Rights Committee, which is responsible for monitoring the ICCPR, can take in the case of a state party failing to submit its report is to mention this failure in the Committee’s Annual Report to the General Assembly. The sheer number of state parties that have failed to report on time, with this and all other human rights treaties, shows that states do not regard this to be of major significance.

Indeed it is thought that were the state parties to the various covenants to submit their reports on time it would throw the human rights treaty reporting system into crisis. In its 1999 Annual report the Human Rights Committee noted that 138 initial and periodic reports were overdue and the Human Rights Committee has a capacity to deal with five to six state reports in each of three annual sessions. In a sense then, the UN benefits from states’ late reporting which is hardly a motivation for harsher clamp-downs.

In terms of their legal status, the rights in the ICCPR are generally to be applied by states with immediate effect. In other words, civil and political rights are directly applicable and judicially enforceable.

Boerefijn poses an interesting question when he asks if a reporting system that requires states to comment on progress in the domestic implementation of the Covenant is compatible with the concept of its direct, immediate applicability. This highlights the interesting tension created between human rights instruments having international legal status and the culture of “constructive dialogue” which underpins their implementation.

However, in its defense, the approach of constructive dialogue does reap rewards including influencing national legal texts and regulations, the practice of national legal norms and the involvement of the vast majority of the international community which in itself creates pressure for rogue states to conform.

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3. A UN general Assembly Resolution

The United Nations General Assembly is the main committee of the United Nations and is composed of representatives of all member states, each of which has one vote. The work of the United Nations is mainly generated from the decisions, or resolutions, of the General Assembly, in the words of the UN “…the will of the majority of the Members as expressed in resolutions adopted by the Assembly.”

Decisions on important questions, such as those on peace and security, admission of new Members and budgetary matters, require a two-thirds majority. Decisions on other questions are reached by a simple majority.

Although General Assembly Resolutions have no legally binding force for UN member states, they are seen to carry the weight of world opinion and the moral authority of the world community.

The use of General Assembly (GA) resolutions to express principles and rules of law is therefore controversial. As Oscar Schachter explains, the adoption of such resolutions have been seen as attempts to impose norms of international law on dissenting minorities and to change radically the way in which international law is made.

The usual route for the formation of international law at the General Assembly level is to use a resolution as the basis for the preparation of a treaty, for example the UN Resolution which adopted the ICCPR in 1966. These treaties are then voluntarily ratified by state parties.

Where GA resolutions seek to declare the law without using the treaty process, it is argued that they are not recommendatory in nature, but are seeking to create universal legal norms. However, the GA’s role in this regard appears to have been accepted from the start. Schachter cites examples of this including the unanimous 1946 resolution declaring genocide a crime under international law. In addition to this, the GA has categorised conduct as illegal under the UN Charter, for example in the case of the resolution condemning South Africa for apartheid.

It is difficult to argue against such resolutions when they are unanimous and therefore represent the opinion of every state carrying the weight of opinio juris communis. In this sense GA resolutions step into the territory of formulating customary international law, where the belief of the state parties carries more weight than the fact that those beliefs were expressed in the UN General Assembly. However, this still gives rise to the necessity to validate state practice in these cases if they are truly to be considered as part of the body of international customary law.

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4. The rules forbidding slavery, genocide and racial discrimination

The rules forbidding slavery, genocide and racial discrimination are human rights which are recognised as being universally mandatory. Such rights fall under the category of international customary law and bind all states whether they have ratified human rights conventions or not.

These customary international laws come into being as a result of a) consistent state practice combined with b) opinio juris, which is the state’s positive sense of legal obligation with regard to the rule.

Rules of this nature include those banning:

• Grave, repeated and systematic violations of human rights
• Slavery
• Genocide
• Systematic racial discrimination
• Torture and other cruel, inhuman and degrading treatment
• Murder and disappearance
• Prolonged arbitrary detention

The list of customary international human rights laws is continually developing. More recent additions which have evolved as a result of state practice and opinio juris include the right to self-determination of peoples, the individual right to leave and return to one’s country and the principle of non-refoulement of refugees.

Some of these rights, including those prohibiting slavery, genocide and racial discrimination, are non-derogable, i.e. a state of public emergency does not allow these rights to be eroded in the name of the protection of the State. Examples of such rights are outlined by article 4 of the ICCPR.

Rights from which no deviation is allowed have the status of Jus Cogens or a peremptory norm, which is an elevated status of right above that of a customary law. Article 53 of the Vienna Conventions on the Law of Treaties states: “.. a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

The International Court of Justice has the responsibility of judicially determining peremptory norms.

A topical example of a peremptory norm is the right not to be tortured. In the wake of the September 11^th attacks on the USA, George Bush ventured that torture should be allowed when interrogating terrorist suspects and was therefore a derogable right.

The United Nations High Commission for Human Rights in Geneva acted swiftly to counteract such claims by issuing a statement which affirmed that article 4 of the ICCPR “… lists provisions that may not be derogated from even in times of public emergency. These are: article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment …) …”.

The statement continues, “Article 2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Finally: “…action against terrorism should not be used as a pretext to infringe human rights…justice, the rule of law, and respect for human rights must guide all responses” (OHCHR, Human Rights and Terrorism, 11 October 2001).

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5. A Decision of the European Court of Human Rights

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHR) entered into force in 1953. According to Steiner and Alston, it remains the most judicially developed of all the human rights systems and has generated a more extensive body of jurisprudence than any other part of the international system.

The European Court of Human Rights in Strasbourg was the first international court to be established to determine human rights matters. There are two key ways in which judgements by the European Court create an impact. Firstly with relation to judgements on the state which if found guilty will lead to state obligations, including the possible amendment of domestic legislation. Secondly in terms of the advancement of the law of the European Convention and the body of international law as a whole.

Internationally, the court’s jurisprudence has been influential in developing international human rights norms. For example, both the Inter-American Court (the only other international body fulfilling a comparable role to the European Court) and the Human Rights Committee have frequently referred to judgements of the court in their own workings.

One of the most significant ways in which judgements affect trends at a regional and international level is in the ECHR’s revision of previous judgements and the resulting evolution of case law according to new precedents. An example of this, the judgement delivered in Selmouni vs France in 1999, is cited by Cassese in International Law. In this case, the court decided that the judgements of serious ill treatment of persons detained in police custody from previous cases, as inhuman or degrading treatment were now to be termed torture. As such they represented a much more serious breach of article 3 of the European Convention of Human Rights.

The court took this view in light of “the increasingly high standard being required in the area of the protection of human rights …and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”

Under article 53 of the European Convention, the court’s decisions are binding on the contracting states. There are two ways in which a judgement of the European Court can be implemented. When the Court finds that there has been a violation of the ECPHR, but the domestic law of the State concerned allows only partial reparation to be made, the court may award the victim just satisfaction (referred to in Article 50 of the Convention). This involves the reimbursement of costs and expenses, and when appropriate, compensation for pecuniary and/or non-pecuniary damage within three months of the judgement.

Alternatively, a finding by the Court of a violation has often led the respondent State to take general measures to comply with the decision in question and the higher domestic courts to adapt their case-law.

In some cases, the reference of a case to the Court has in itself prompted or expedited amendments to domestic legislation and regulations or changes in the case-law. Judgments have also resulted in the respondent State adopting concrete measures in relation to the person or persons concerned.

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Bibliography

1. Ineke Boerefijn, Towards a Strong System of Supervision: The Human Rights Committee’s Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights, Human Rights Quarterly 17.4 (1995) 766-793
2. Antonio Cassese, International Law
3. European Convention for the Protection of Human Rights and Fundamental Freedoms
4. European Court of Human Rights
5. Office of the UN High Commissioner for Human Rights – Human Rights and Terrorism
6. International Covenant on Civil and Political Rights
7. International Covenant on Economic, Social and Cultural Rights
8. Steiner and Alston, International Human Rights in Context
9. Universal Declaration of Human Rights

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