Human Rights Law

Author: Annalisa Ciampi

Required knowledge: History of International Law

Learning objectives: to understand the evolution of international human rights law as a separate branch of international law and a separate domain of global government.

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A. Introduction

This chapter traces back the evolution of human rights from its inception to its recent crisis and current developments, leading to structural changes within international law, away from state-centrism towards a stronger focus on the individual. It shows how the the divide between human rights and other branches of international law (such as trade, investment, development etc.) is the result of numerous failures, which date back to the aftermath of the Second World War, proceeded during and beyond the Cold War, and continued up into the 21st century.

I. The Failure of the Unitary Design of the Universal Declaration of Human Rights and the Split into ‘Generations’ of Rights

The Universal Declaration of Human Rights (UDHR) is generally agreed to be a milestone document in the foundation of international human rights law. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. As a single document, it encapsulated the progressive realisation of democracy and development through the universal and effective recognition and observance of rights. And it made no distinction between mostly ‘negative’ (freedoms from), classical civil and political rights, and (essentially ‘positive’: freedom of) social, economic, and cultural rights, or collective rights. It was, however, proclaimed as a not binding document: several authoritarian States abstained, while even liberal democracies were not ready to commit themselves to binding legal obligations. Then came the Cold War and human rights became yoked to the ideological conflict between the United States and the former Soviet Union.

Deep political disagreement and profoundly different conceptions of rights between the Western and non-Western world – which included the former socialist States but also the newly independent, developing States – led to the sub-division of human rights into three categories: the so called ‘first generation’ rights, known as civil and political rights; economic, social and cultural rights as ‘second generation’ rights; and ‘group rights’ as ‘third generation’ rights.

It took 18 years for the signature of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, and then another decade for their entry into force. The adoption of these first international human rights treaties marked the setting aside of collective rights and the formal split between the first generation of rights in the ICCPR and the second generation of rights in the ICESCR. The vision of rights into ‘generations’ has remained also at the regional level, particularly within the Council of Europe, long considered the most advanced system for human rights protection. Yet, the UDHR is widely recognized as having inspired, and paved the way for, the adoption of more than seventy human rights treaties, all containing references to it in their preambles, both at the global level (see United Nations Human Rights System) and regionally (African Human Rights System; European Human Rights System; Inter-American Human Rights System; Arab and Islamic Human Rights System; and Asian Human Rights System).

II. The ‘Influence’ of Human Rights during the Decolonization Period and the End of the Cold War

It is generally acknowledged that during decolonisation beginning in the 1960s and more prominently in the 1970s and 1980s, human rights began to exercise their influence and become a major force in international relations.

The Soviet Union ratifies the ICCPR in 1973 and 1975 sets the beginning of the Helsinki process. Despite their lack of formal status as international treaties setting out binding commitments, the Helsinki Accords provided a framework for the scrutiny of human rights practice in the former Soviet Union and its satellite States. In 1977, the US Congress passed a law conditioning certain types of aids to compliance with human rights. The Convention on the Elimination of All Forms of Discrimination against Women was adopted in 1979, based on a General Assembly resolution sponsored by 22 developing countries and some East European States. The Convention against Torture – a milestone in the protection of the most fundamental human rights – was signed in 1984. Following a proposal by Poland and other countries of the Soviet bloc, the Convention on the Rights of the Child was opened to signature in 1989.

Advanced: Collapse of the Soviet Union

However, the collapse of the Soviet Union was not caused by its human rights violations or by the domestic or international opposition fuelled by those violations. The real historical causes of the end of the Cold War in 1989-1991 lay in the failure of the Soviet system to deliver economic prosperity due to the inefficiencies of the Soviet command economy, which remained technologically backward and full of corruption, as well as the decline in the price of oil – one of the Soviet Union’s assets, together with gold and natural gas.

III. The Divide Between the Theory and Practice of Human Rights in the Last Decade of the 20th Century

In the post-Cold War, post-decolonisation era, the existence of an international human rights regime was well-established. While not all countries had ratified all human rights treaties, most countries ratified most of them. Nowdays, some treaties have been ratified nearly by all States (most notably, the ICCPR with 173 State parties and the Convention on the Rights of the Child with 196)and each of the six major human rights treaties have more than 150 parties.

1993 marked the year of the establishment of the United Nations Office of the High Commissioner for Human Rights, whose task includes preventing human rights violations and securing respect for all human rights, promoting international cooperation and coordinating related activities throughout the United Nations, and leading efforts to integrate a human rights approach within all activities carried out within the United Nations system.

Taking on human rights-related causes became one of the most important functions of non-governmental organisations (NGOs) around the world. NGOs with a focus on human rights issues increased in number and activities, working with or against governments in developing agendas for action, participating in treaty negotiations, investigating and reporting human rights abuses and offering direct assistance to victims of those abuses, lobbying political officials, corporations, international financial institutions, intergovernmental organisations, and the media. NGOs became also increasingly involved in providing services, such as training programmes on the rule of law and humanitarian assistance in disaster areas.

This was also the era when the legal theory of jus cogens emerged and started to permeate diplomatic intercourses, judicial arguments in national and international fora, and the academic debate, to include the prohibition of torture, genocide, and other serious breaches of human rights. More broadly, the 90s were characterized by the the general blossoming of multilateralism, and will be become known as the "golden age" of international law and international institutions.

Notwithstanding these developments at the normative, institutional, operational and theoretical level, however, the decade between the end of the Cold War and the end of the 20th century sets the beginning of a divide between the legal aspirations and the actual implementation of human rights. While the 1970s had seen the human rights movement acquiring prominence in international law, in the 1990s, there is consensus that all countries must respect human rights; yet, some of the worst atrocities of our modern era are committed in many parts of the world, including within the European borders.

Advanced: Human Rights in the European Union

In the European Union (EU), established under the Maastricht Treaty in 1993, human rights – long protected by the European Court of Justice as unwritten general principles – are formally recognised as a matter of EU domestic constitutional law (Article 6 TEU) and a benchmark to be met by new members States (Article 49 TEU). This, however, will be at the origin of the divide between requirements demanded from third States applying for membership to the EU and internal standards. True enforcement mechanisms are still conspicuously absent to ensure compliance by the member States with the EU Charter of Fundamental Rights (which was proclaimed in 2000 and become binding in 2009, with the Treaty of Lisbon). The promotion of human rights is confirmed as an objective of all EU external actions, including development cooperation, but no significant resources are devoted to advance human rights outside the Europe.

Countless international crimes were committed by all sides to the conflict, which erupted in the former Yugoslavia in 1991. In 1994, the Rwandan genocide, during the Rwandan Civil War, which had started in 1990, killed between 500,000 and 1,000,000 Rwandans constituting an estimated 70% of the Tutsi population. Following the dissolution of the Soviet Union on 26 December 1991, the establishment of the Russian Federation was marked by the First Chechen War (1994-1996), which set the prelude to the ten-year long Second Chechen War (1999-2009), with estimates of military and civilian casualties varying in the number of tens of thousands.

Another manifestation of the rising divide between human rights theory and practice is in the response to the Chinese Government’s armed repression of the political unrest in Tibet in 1987- 1989 and violent suppression of the pro-democracy movement at Tiananmen Square in June 1989. Western countries imposed severe economic sanctions and arms embargoes on Chinese entities and officials, which led in turn to a spiral of harsher measures of suppression of other protests around China and heavier condemnation by the West. Initially, the US adopted strong measures against the Chinese government, including the suspension of military sales, the cancellation of high-level visits and regular meetings between the two countries, a request to stop all new loans from the International Monetary Fund and the World Bank, the revocation of China’s most favoured nation status and the connection of the issue of human rights with trade. In 1994, however, the Clinton administration decided not to link these two issues and the ‘American bilateral monitoring’ of Chinese human rights conditions officially ended. It will not be until well into the 21st century that the Western countries will impose significant sanctions in relation to human rights violations in China.

IV. Autonomy or Isolation from Other Domains of Global Governance? The ‘Effectiveness’ Crisis of Human Rights at the Dawn of the 21st Century

By the turn of the century, most States had ratified the majority of the most important human rights treaties. Institutionally, the Human Rights Council was established in 2006 to replace the Commission on Human Rights – long criticised for including some of the most prominent human rights violators and an uneven selection of situations subject to its scrutiny. While special procedures continue to monitor, examine, advise, and publicly report on specific rights or country-specific situations under the Universal Periodic Review, set up by the Human Rights Council, all States members of the United Nations are subject to a periodic assessment in relation to all human rights issues – not just those enshrined in treaties to which they are parties. Human rights institutions also flourish and expand at the regional level. Thanks to the automatic right of individual application introduced in 1998, the European Court of Human Rights can hold 47 member States accountable for violations of the rights and freedoms guaranteed under the European Convention of Human Rights to over 800 million persons (see European Human Rights System). The Inter-American Court of Human Rights (see Inter-American Human Rights System), the African Court on Human and Peoples’ Rights (see African Human Rights System ) and the Arab Human Rights Commission (see Arab and Islamic Human Rights System) are all functioning institutions overseeing compliance with their respective human rights charter. Law schools – where future generations of judges, lawyers, and lawmakers are formed – include international human rights courses in their curricula – which in turn prompts private litigation, in the US and elsewhere, based upon human rights violations. Human rights language is used everywhere and is routinely invoked to criticise governments in political and diplomatic discourse, while human rights NGOs continue to grow in number and in the outreach of their reporting, lobbying and advocacy activities.

Yet, the beginning of the 21st century is indelibly marked by two events: the September 11 attacks of 2001 by the Islamic extremist group al-Qaeda against US targets – which exposed the fragility of the most powerful democracy, triggering the most geographically and temporally undefined war in history, the war against international terrorism – and the global financial shock of 2008 with the ensuing economic crisis.

And human rights practices worsen in many parts of the world. Following a period of worsening relations between Russia and Georgia, a war erupted between Georgia, Russia, and the Russian-backed self-proclaimed Republics of South Ossetia and Abkhazia in August 2008. Another war erupted in 2014, when Russia seizes Crimea from Ukraine violating the territorial integrity of the former Soviet Republic. Africa is afflicted in the South by a major armed conflict in the Darfur region of Sudan that began in February 2003 between rebel groups and the government of Sudan, which they accused of oppressing Darfur's non-Arab population. The government responded to attacks by carrying out a campaign of ethnic cleansing against Darfur's non-Arabs. The North is marked by the Arab Spring, a series of anti-government protests, demonstrations and armed rebellions that commenced in Tunisia in 2010 and spread, in early 2011, across North Africa and the Middle East, as a response to oppressive regimes and low living standards. One of the consequences was the multi-State North Atlantic Treaty Organization-led military intervention in Libya in March 2011 and the ensuing chaos that still dominates the country. As part of the Arab Spring in the Middle East, the Syrian civil war grew out of a popular uprising against the regime of President Bashar al Assad in March 2011 and the brutal response of the security forces, which dragged the country into an ongoing full-scale civil war. At the same time, the pillars of European integration are challenged by the ensuing influx of migrants and refugees, terrorist attacks and its own war against terrorism, and ultimately, Brexit and the rise of anti-establishment populist parties.

The distance between the theory and practice of human rights became more profound, posing dramatically the question of the ‘effectiveness’ of the international human rights regime. Human rights themselves are increasingly the object of criticism (see Critique of Human Rights), with some States even backlashing against the European Court of Human Rights or the Inter-American Court of Human Rights (see Domestic Law in International Courts).

1. The ‘Effectiveness’ of International Human Rights Law

Human rights rules and principles differ from those governing international trade, investment, development or the protection of the environment in their normative structure, institutional settings and dispute settlement mechanisms. International human rights law is relatively weak compared, for example, to the regime of international trade or direct investment abroad. No competitive market forces push countries towards compliance, nor are states generally consistent in their application of human rights standards to their foreign policy, and only exceptionally employ political, economic, military or other sanctions to coerce other countries to improve their human rights record. This is because, contrary to trade openness or the protection of foreign investments, a State and its citizens are hardly affected if the human rights of citizens of other countries are violated in the territory of their home State. This is the conundrum and the eternal dilemma of human rights, which impose obligations erga omnes – respect for which should be imposed in the name of the international society as a whole – but which in fact are generally enforced only when specific national interests are at stake. And without powerful States taking a strong interest in the effectiveness of human rights, there is little cost for countries with a poor human rights reputation to ratify human rights treaties as a symbolic gesture of goodwill, while maintaining their actual practices in reality.

Human rights did bring about significant positive changes in State behaviours vis-à-vis individuals in the second half of the 20th century. Accounts, however, differ as to the precise contribution of international law to the improvement of human rights conditions worldwide in the second half of the 20th century. Unlike growth in gross domestic product, import and export data and foreign direct investment stocks and flows, the effectiveness of human rights is hardly measurable because numerical values are not entirely attributable to human rights practices. The development of human rights indicators by international organizations does not fundamentally alter this picture. It is also difficult to deny that human rights improvements on the ground in various areas of the world in the last decade of the 20th century were not the product of the human rights movement, but are rather attributable to economic growth, the collapse of communism and other offsetting factors. And, at the beginning of the 21st century, international human rights law undergoes a profound crisis.

2. New technologies and COVID-19

All international law fields are affected by the pervasiveness of the new technologies (as discussed in depth in International Law in Cyberspace. The internet and social networks can both significantly facilitate and impede the exercise of human rights. They offer a powerful means for society and individuals to express their rights, but also a new – online – environment in which such rights can be curtailed by powerful states, public and private institutions, and individuals. As a consequence, international human rights rules need to be interpreted and adapted and new rules need to be enacted in order to ensure cybersecurity and to protect against hate speech, misinformation, disinformation, incitement of violence, and other digital content that can also cause real-world harm. New technologies have also contributed to make both small and large-scale human rights breaches well-detected and documented, with no corresponding decline, however, in human rights breaches. Also, the human rights implications of artificial intelligence and big data, due to their enormous scope and global reach, could not be overestimated. This phenomenon had been going on for several decades, but modern technologies increased incrementally over the second decade of the 21st century and the outbreak of COVID-19, even before it unleashed its catastrophic economic and social consequences, precipitated it.

Advanced: COVID-19 and Human Rights

While human rights are more important than ever in times of crisis, the COVID-19 pandemic exposed gaps in respecting the fundamental rights to health, education, employment, and social protection across society. Measures taken to curb its spread to safeguard public health and provide medical care to defend the human rights of health and of life itself, limiting fundamental freedoms to an extent rarely experienced in peacetime.

B. Efforts at Reuniting Human Rights with Other Domains of Global Governance

As highlighted above, the history of international human rights law is primarily a story of separation of human rights from other realm of international law. One of the causes of their ineffectiveness is precisely in its relative isolation from other domains of global governance. Hence, it is desirable to overcome such a separation.

I. Bridging Existing Divides from Within the Human Rights Regime

With a view to filling the considerable gap between the recognition of human rights and their implementation on the ground, the UN has put great emphasis, in the first quarter of 21st century, on the universality, indivisibility, and interdependence of human rights. The principle of universality means that human rights shall enjoy universal protection across all boundaries and civilizations, regardless of political, economic, or cultural systems. Indivisibility implies that all civil, cultural, economic, political, and social rights are equally important and that the improvement in the enjoyment of any right cannot be at the expense of the realisation of any other. Human rights are seen as interdependent because the level of enjoyment of any one right is considered as dependent on the level of realisation of the other rights.

While very few would not wish theoretically for a world where all rights are equally protected, respected, and fulfilled for everyone, the debate is intense at the level of implementation and enforcement. There is no evidence that the adoption and promotion of these principles by the United Nations was ever informed by empirical facts. Indeed, it is possible to fully implement or secure certain human rights (for example, rights not to be enslaved or tortured) without fully implementing or securing other human rights (for example, rights to education or food), and vice versa. The realisation of rights requires choices as to ways in which to implement them and to what extent, and by employing which resources. While a few rights are absolute because they cannot be limited or in-fringed under any circumstances, not even during a declared state of emergency, most individual rights may be subject to limitations to balance them against public interests (such as public order, public health or national security) as well as the rights others. The uneven implementation of rights, therefore, is not only possible, but – to some extent, at least – a necessity.

Advanced: China’s New International Human Rights Diplomacy

A more radical attempt at bridging the divide between human rights and international economic and development law and a fundamental challenge to the universality of human rights is China’s ‘cultural relativism’ and collectivist conception of human rights, including its emphasis on ‘development first’. Along with the former Soviet Union, China contributed to the rise of the second generation of rights and played an important role in the three-generation debate. After Tiananmen, however, human rights had become a structural weakness that China had to overcome through active diplomacy. In the 21st century, China still promotes the concept that human rights must be ‘based on national conditions, with the right to development as the primary basic human right’, a point emphasised in the Beijing Declaration in 2017. As part of its broader effort to redefine its role on the world scene since the turn of the millennium, China aims to establish itself as an international human rights world champion, with the Human Rights Council as the natural arena for the display of such a move – a dimension that has received little attention so far.

II. Reuniting Human Rights with Trade, Investment, and Development through Free Trade Agreements, Sustainable Development Goals and Other Tools

For 70 years, the development of international legal rules was the main strategy to promote respect for and observance of human rights. International human rights law continues to grow, enriching itself with new treaties, declarations, and resolutions, because States, international organizations and NGOs continue to feel a need for such international instruments covering certain areas of human rights.

Many countries, however, also began to negotiate bilateral and regional trade deals, which primarily aim to establish or further deepen preferential economic relations between the parties, but also include chapters on core human rights, the environment and development. It is too early to assess this new generation of free trade agreements with respect to their stated aim of fostering trade and investment while at same time promoting human rights, particularly labour rights, the protection of the environment, and other third generation rights (such as the right to clean water and other essential goods, usually provided by State public services). Whether they will be successful or not, they represent a clear sign that there exists a need to ‘reunite’ within a single normative framework these multiple areas of the law.

A number of Western states have also introduced a series of new unilateral measures in order to ensure respect for human rights around the world, such as bans on the Import of goods suspected to have been produced with forced labour or as a result of other human rights violations, and corporate due diligence requirements, which aim to to anchor human rights in companies’ operations and governance. These are also tool which aim to link human rights to international trade and the economic realm, more broadly.

In the same perspective, following the Millennium Development Goals adopted in 2000, the 2030 Agenda for Sustainable Development set, in 2016, the Sustainable Development Goals (SDGs): 17 global goals covering social and economic development issues including poverty, hunger, health, education, global warming, gender equality, water, sanitation, energy, urbanisation, environment, and social justice. The right to development has thus been linked to economic growth and poverty reduction, rather than political rights and personal freedoms. It is also linked to the right to security. This is another important recognition that the furtherance of development away from international cooperation in economic matters is an unattainable goal and that international trade and investment are human rights’ most natural allies.

Conclusion

As reconstructed above, the history of human rights is one of a parallel, yet separate, evolution in relative isolation from other domains of global governance. Human rights law differs from the law governing the liberalization of trade, investment protection, development assistance and the protection of the environment in its normative structure, institutional settings and dispute settlement mechanisms. Yet, one of the causes of the criticisms and the ‘effectiveness’ crisis of human rights lies precisely in its relative isolation from other branches of international law.

New technologies have not contributed to overcome this separation or advance the effectiveness of international human rights law. While they have significantly facilitated the exercise of human rights and the detection of their violations, they have also created a new online environment (the cyberspace), where human rights can be curtailed.

The sustainable development goals (SDGs), the new generation of free trade agreements (FTAs) and a series of new unilateral measures by Western States do have the potential to contribute to the implementation and enforcement of human rights worldwide, bridging historical normative and institutional divides and reuniting human rights in a single framework with trade, investment and development.

Readings

• D.L. Shelton, Advanced Introduction to International Human Rights Law (Edward Elgar 2014)
• A. Ciampi, ‘The Divide between Human Rights, International Trade, Investment and Development Law’ (2018) 61 German Yearbook of International Law 251
• B.A. Simmons, Mobilizing for Human Rights. International Law in Domestic Politics (Cambridge UP 2012)

Conclusion

• The history of human rights is one of a parallel, yet separate, evolution in relative isolation from other domains of global governance.
• Human rights law differs from the law governing the liberalization of trade, investment protection, development assistance and the protection of the environment in its normative structure, institutional settings and dispute settlement mechanisms.
• One of the causes of the ‘effectiveness’ crisis of international human rights law lies in its relative isolation from other branches of international law.
• New technologies have significantly facilitated the exercise - and detection of violations - of human rights. Yet, they have created a new – online – environment where human rights can be curtailed and have not advanced the effectiveness of international human rights law.
• The sustainable development goals (SDGs), the new generation of free trade agreements (FTAs) and a series of new unilateral measures by Western States are amongst current efforts to bridge historical normative and institutional divides, with a view to reuniting human rights in a single framework with trade, investment and development.