2.4 International law and human rights
7 min read•august 14, 2024
International law and human rights are crucial components of global legal systems. They establish rules and norms that govern interactions between states and protect individuals' fundamental rights. These principles shape how countries behave and treat their citizens.
Human rights treaties and organizations aim to safeguard people's basic freedoms worldwide. While challenges exist in enforcement, these mechanisms provide important standards and avenues for holding governments accountable for their actions and policies regarding human rights.
Sources and Principles of International Law
Primary Sources of International Law
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- Treaties are formal agreements between states that are binding on the parties
- Can be bilateral (between two states) or multilateral (between many states)
- Examples: United Nations Charter, North American Free Trade Agreement (NAFTA)
- Customary international law refers to the practices of states that are accepted as law
- Often emerges from widespread and consistent state practice and a belief that such practice is legally required (opinio juris)
- Examples: diplomatic immunity, prohibition of
- General principles of law are those recognized by civilized nations and can fill gaps in treaty law and customary law
- Derived from common legal principles found in domestic legal systems
- Examples: principle of good faith, res judicata (a matter that has been adjudicated by a competent court and may not be pursued further by the same parties)
- Judicial decisions and the teachings of highly qualified legal scholars can be used as subsidiary means for determining the rules of law
- While not primary sources, they provide important guidance and interpretation
- Examples: decisions of the International Court of Justice (ICJ), writings of prominent international law scholars
Fundamental Principles of International Law
- is the principle that each state has the right to govern itself and its internal affairs without interference from other states
- Enshrined in the UN Charter and is a cornerstone of the international legal system
- Limits the ability of other states or international organizations to intervene in a state's domestic matters
- is the principle that states should not interfere in the internal or external affairs of other states
- Prohibits the use of force, coercion, or other means to influence the political, economic, or social systems of other states
- Exceptions include self-defense and UN-authorized collective action
- of peoples is the right of peoples to freely determine their political status and pursue their economic, social, and cultural development
- Applies to peoples under colonial domination, foreign occupation, or racist regimes
- Examples: decolonization process, independence movements
- requires states to resolve their differences through peaceful means, such as negotiation, mediation, or adjudication
- Enshrined in the UN Charter and is essential for maintaining international peace and security
- Examples: International Court of Justice, arbitration tribunals
- obliges states to protect and promote the fundamental rights and freedoms of individuals within their
- Grounded in the and various international human rights treaties
- Includes civil, political, economic, social, and cultural rights
International Organizations for Human Rights
United Nations Human Rights System
- The United Nations (UN) plays a central role in promoting human rights through its various organs
- General Assembly adopts human rights treaties and declarations, and discusses human rights issues
- Human Rights Council is responsible for promoting and protecting human rights worldwide
- Office of the High Commissioner for Human Rights (OHCHR) provides secretariat support and technical assistance
- The UN has adopted several key human rights instruments
- Universal Declaration of Human Rights (UDHR) sets out the basic rights and freedoms to which all individuals are entitled
- (ICCPR) covers rights such as freedom of expression, due process, and political participation
- (ICESCR) addresses rights such as the right to work, education, and an adequate standard of living
Regional Human Rights Systems
- Regional organizations have established their own human rights systems with treaties and monitoring mechanisms
- Council of Europe has the and the European Court of Human Rights
- Organization of American States (OAS) has the and the Inter-American Commission and Court of Human Rights
- African Union (AU) has the and the African Commission and Court on Human and Peoples' Rights
- Regional systems can provide more context-specific protection and enforcement of human rights
- Often have stronger enforcement mechanisms than the UN system, such as binding court judgments
- Can address regional human rights issues and challenges more effectively
Role of Non-Governmental Organizations (NGOs)
- NGOs play a crucial role in promoting human rights by monitoring state compliance, advocating for victims, and raising public awareness
- Monitor and report on human rights violations, often in countries where access is restricted
- Provide legal assistance and support to victims of human rights abuses
- Engage in advocacy and lobbying to influence state policies and practices
- Examples of prominent human rights NGOs include , , and the International Commission of Jurists
- Often have consultative status with the UN and regional organizations
- Contribute to the development of international human rights law through their expertise and input
Effectiveness of Human Rights Treaties
Legal Obligations and Compliance
- International human rights treaties are legally binding on states that have ratified them
- States are obligated to respect, protect, and fulfill the rights enshrined in these treaties
- Requires states to align their domestic laws and practices with international standards
- Effectiveness of treaties depends on state compliance and enforcement mechanisms
- States may lack political will or capacity to fully implement their obligations
- Some states may ratify treaties for political reasons without genuine commitment to compliance
- Treaty monitoring bodies review state reports and issue recommendations, but lack strong enforcement powers
- Examples: Human Rights Committee (ICCPR), Committee on Economic, Social, and Cultural Rights (ICESCR)
- Rely on constructive dialogue and public pressure to encourage compliance
Universal Periodic Review (UPR) Process
- The UN Human Rights Council conducts the Universal Periodic Review (UPR), a peer review process that assesses the human rights records of all UN member states
- States submit reports on their human rights situation and engage in interactive dialogue with other states
- Other stakeholders, such as NGOs, can also provide input and recommendations
- UPR recommendations are not legally binding, but provide important political and moral pressure for states to improve their human rights practices
- States are expected to implement accepted recommendations and report on progress in subsequent reviews
- UPR process has contributed to increased engagement and cooperation on human rights issues
Constraints and Challenges
- Effectiveness of international human rights law is often constrained by state sovereignty and lack of political will
- States may prioritize national interests over human rights obligations
- Lack of strong enforcement mechanisms at the global level limits the ability to hold states accountable
- Absence of universal ratification and reservations to treaties can undermine their impact
- Some states have not ratified key human rights treaties or have entered significant reservations
- Reservations can limit the scope and application of treaty provisions in domestic contexts
- Resource constraints and institutional weaknesses can hinder the work of treaty bodies and monitoring mechanisms
- Insufficient funding, staffing, and expertise can limit the capacity to effectively monitor and promote compliance
- Politicization of human rights bodies can undermine their credibility and effectiveness
International Law vs Domestic Systems
Relationship between International and Domestic Law
- The relationship between international law and domestic law varies across states, depending on their constitutional and legal frameworks
- Monist systems view international law and domestic law as part of a single legal order, with international law taking precedence in case of conflict
- Dualist systems treat international law and domestic law as separate legal orders, requiring incorporation of international law into domestic legislation
- States have an obligation to bring their domestic laws and practices into conformity with their international legal obligations
- May require legislative changes, policy reforms, or institutional adaptations
- Failure to do so can result in international responsibility and criticism
Role of Domestic Courts
- Domestic courts can play a crucial role in enforcing international human rights law by interpreting and applying international norms in their decisions
- Can directly apply international law in monist systems or interpret domestic law in light of international obligations
- Examples: application of the European Convention on Human Rights by domestic courts in Europe
- Domestic courts can also provide remedies for human rights violations and hold state authorities accountable
- Can order compensation, restitution, or other forms of reparation for victims
- Can strike down laws or policies that are inconsistent with international human rights standards
Margin of Appreciation Doctrine
- The doctrine of "margin of appreciation" allows states some discretion in balancing individual rights with national interests
- Recognizes that states may have different cultural, social, or economic contexts that influence the implementation of human rights
- Allows for some variation in the interpretation and application of human rights norms across states
- The margin of appreciation is not unlimited and is subject to international oversight
- International courts and monitoring bodies can review whether states have exceeded their margin of appreciation
- Must ensure that any limitations on rights are necessary, proportionate, and consistent with international standards
- The doctrine seeks to balance the universality of human rights with the diversity of national contexts
- Encourages dialogue and mutual understanding between international and domestic legal systems
- Helps to accommodate legitimate differences while maintaining the core principles of human rights protection
Key Terms to Review (24)
African Charter on Human and Peoples' Rights: The African Charter on Human and Peoples' Rights is a regional human rights instrument adopted by the Organization of African Unity in 1981, which seeks to promote and protect human rights and fundamental freedoms across African states. It emphasizes both individual rights and collective rights of peoples, marking a significant development in international law and human rights, as it integrates economic, social, and cultural rights along with civil and political rights.
American Convention on Human Rights: The American Convention on Human Rights is a regional human rights treaty that was adopted in 1969 and aims to promote and protect human rights in the Americas. It establishes various civil and political rights, outlines the responsibilities of state parties, and creates mechanisms for enforcement through the Inter-American System of Human Rights. This convention serves as a crucial framework for addressing human rights violations and fostering accountability among member states.
Amnesty International: Amnesty International is a global human rights organization that focuses on advocating for the protection and promotion of human rights around the world. Founded in 1961, it works to hold governments accountable for human rights violations and to promote awareness of injustices, with a mission centered on ensuring that everyone enjoys the rights outlined in the Universal Declaration of Human Rights.
European Convention on Human Rights: The European Convention on Human Rights is an international treaty established in 1950 to protect human rights and fundamental freedoms in Europe. It sets forth a range of civil and political rights that member states of the Council of Europe are obligated to uphold, providing individuals with a mechanism to seek justice against violations by their governments.
Extraterritoriality: Extraterritoriality refers to the principle that allows a country to exercise legal jurisdiction beyond its own borders. This concept is particularly relevant in international law and human rights, as it enables nations to hold individuals or entities accountable for actions that occur outside their territory, especially when these actions violate international norms or treaties.
Genocide: Genocide is the intentional and systematic destruction of a racial, ethnic, national, or religious group, often characterized by acts such as mass killings, forced displacement, and other forms of persecution. It connects deeply to the frameworks of international law and human rights, as global communities seek to prevent and punish such atrocities through treaties and legal mechanisms, acknowledging the grave violation of human rights that genocide represents.
Hannah Arendt: Hannah Arendt was a German-American political theorist known for her works on the nature of power, totalitarianism, and the human condition. She examined the relationship between law, politics, and individual rights, arguing that human rights are derived from the individual's capacity to act in a political community. Her insights into the nature of authority and human dignity have significantly influenced discussions on international law and the rights of immigrants and refugees.
Human rights tribunals: Human rights tribunals are specialized legal bodies established to hear and adjudicate cases related to human rights violations. They provide a platform for individuals and groups to seek justice when their rights are infringed, often addressing issues such as discrimination, torture, and unlawful detention. These tribunals play a crucial role in enforcing international human rights law and promoting accountability for perpetrators of abuses.
Human Rights Watch: Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights issues worldwide. Established in 1978, it aims to protect and promote human rights through rigorous fact-finding, reporting, and lobbying efforts directed at governments and international institutions. The organization plays a crucial role in highlighting human rights violations and holding perpetrators accountable, contributing significantly to the development of international law and human rights norms.
International Covenant on Civil and Political Rights: The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that aims to protect the civil and political rights of individuals worldwide. Adopted by the United Nations in 1966, it establishes various rights that states must respect and ensure for all people, connecting fundamental human rights to international law and holding governments accountable for their treatment of individuals.
International Covenant on Economic, Social, and Cultural Rights: The International Covenant on Economic, Social, and Cultural Rights (ICESCR) is a key multilateral treaty adopted by the United Nations in 1966, aimed at ensuring the protection of economic, social, and cultural rights for all individuals. This covenant complements the International Covenant on Civil and Political Rights (ICCPR), creating a comprehensive framework for human rights that addresses both civil liberties and social justice. By recognizing rights such as the right to work, education, health, and an adequate standard of living, the ICESCR seeks to promote equality and dignity for every person across the globe.
International Criminal Court: The International Criminal Court (ICC) is a permanent international tribunal established to prosecute individuals for crimes such as genocide, war crimes, and crimes against humanity. It aims to hold accountable those responsible for serious violations of international law and to promote justice and deter future atrocities. The ICC is significant in the context of international law and human rights as it provides a legal mechanism for victims to seek justice on a global scale.
John Rawls: John Rawls was a prominent American political philosopher known for his theory of justice as fairness, which emphasizes the importance of fairness and equality in societal structures. His work fundamentally reshaped discussions around justice, social institutions, and ethical considerations in law, advocating for principles that ensure basic rights and equal opportunities for all individuals, especially the least advantaged members of society.
Jurisdiction: Jurisdiction refers to the legal authority of a court or legal system to make decisions and judgments over specific cases or subjects. This concept is critical in determining which laws apply in a given situation and where legal matters should be adjudicated. Understanding jurisdiction is especially important when considering how different legal systems interact, including customary laws that may arise within indigenous communities and the global frameworks governing international law and human rights.
Jus cogens: Jus cogens refers to peremptory norms of international law that are universally recognized as fundamental principles, which cannot be violated or derogated from by states. These norms serve as the foundation for human rights and international relations, asserting that certain rights, such as the prohibition of torture and genocide, are non-negotiable. Jus cogens norms ensure that all states are held to a minimum standard of behavior, reinforcing the significance of human dignity in the international legal framework.
Legal Positivism: Legal positivism is a school of thought in the philosophy of law that asserts that law is a set of rules and norms created by human beings and is not necessarily tied to morality or natural law. This approach emphasizes the importance of social facts and institutional processes in the creation and interpretation of law, separating legal systems from moral or ethical considerations.
Natural Law: Natural law is a philosophical theory that posits the existence of certain inherent rights and moral principles that are universal and can be understood through human reason. This concept emphasizes that laws should reflect these inherent moral values, suggesting a connection between ethics and legality, which influences various legal systems and interpretations.
Non-intervention: Non-intervention is the principle that a country should not interfere in the internal affairs of another sovereign state. This concept is crucial in international relations and law, as it emphasizes respect for sovereignty and self-determination, while also raising questions about the limits of this principle when human rights violations occur.
Peaceful settlement of disputes: The peaceful settlement of disputes refers to methods and processes used to resolve conflicts without resorting to violence or coercion. This concept is essential in maintaining international order and protecting human rights, as it promotes dialogue, negotiation, and arbitration among states and individuals facing disagreements. By encouraging non-violent approaches, it helps to preserve stability, foster cooperation, and uphold the rule of law in international relations.
Respect for Human Rights: Respect for human rights means acknowledging and valuing the inherent dignity and rights of every individual, ensuring they are treated with fairness, equality, and justice. This principle is foundational to international law and human rights, as it promotes the protection of individuals against abuses and discrimination by governments and other entities. It underpins various international treaties and declarations aimed at safeguarding personal freedoms and promoting social justice globally.
Self-determination: Self-determination is the right of individuals and groups to make choices about their own lives and governance without external interference. This concept emphasizes autonomy and the ability to control one’s destiny, which is particularly relevant when discussing the rights of indigenous populations, the application of international law to human rights, and the accommodation of individuals with disabilities. Self-determination highlights the importance of recognizing the diverse identities and experiences of various groups in creating just legal systems and policies.
State sovereignty: State sovereignty refers to the authority of a state to govern itself without external interference, recognizing its independence and autonomy in making decisions. It is a fundamental principle of international law, often balancing the rights of individual states with the enforcement of human rights standards and obligations. This concept is crucial in understanding how states interact on the global stage and the limits of their power concerning both domestic governance and international expectations.
Torture: Torture is the intentional infliction of severe pain or suffering, whether physical or psychological, by a person in authority on another person, typically to obtain information, punish, intimidate, or for reasons based on discrimination. This practice is a severe violation of human rights and is condemned under international law, highlighting the fundamental principles of human dignity and the prohibition against cruel treatment.
Universal Declaration of Human Rights: The Universal Declaration of Human Rights (UDHR) is a foundational document adopted by the United Nations General Assembly in 1948 that outlines the fundamental human rights to be universally protected. It represents a significant milestone in the development of international law and human rights, establishing a common standard of achievements for all peoples and nations, emphasizing dignity, freedom, and justice.