The Foundations of International Human Rights Law

International human rights law, at its core, is concerned with protecting individuals against arbitrary acts of the state. The questions underneath that objective have been a concern for human societies throughout history  –

• What are the legitimate constraints on powerful people?
• Who is entitled to protection under the law and in what circumstances?
• What laws should take precedence over others?

We will see in the history chapter that we can identify laws aimed at addressing these questions dating back thousands of years across various civilisations, from the Edicts of Ashoka to the laws of Ancient Greece and Rome. We can even see parallels in the content of human rights between the protections offered against arbitrary detention in the Magna Carta from 1215 and the International Covenant on Civil and Political Rights, which was adopted over 750 years later. In many ways, international human rights law is just a more recent attempt to address these age-old questions.

There are many important milestones on the road to the development of contemporary human rights law. While the Universal Declaration of Human Rights, which was adopted in 1948, is held up as the basis for contemporary human rights treaties, it was built on a range of other developments before it. As we note in the history chapter, the formation of civil society organisations advocating for the rights of different groups, the use of international treaties to guarantee the welfare of individuals in international humanitarian law, anti-slavery treaties and the attempts to protect minorities through international law after World War 1 all represent important milestones in the development of international human rights law.

However, several features distinguished the Universal Declaration on Human Rights from its precursors. Historically, rights were linked to different factors in municipal legal systems, such as citizenship, gender or land ownership. The Universal Declaration, by contrast, sought to break these links to status and other factors and universalise protections. This is exemplified by Article 2 of the Universal Declaration of Human Rights 1948, which states:

We will see that universality is one of the core principles underpinning international human rights law in the chapter on core principles. We have human rights because we exist as human beings. This means that we are all equally entitled to our human rights, regardless of nationality, sex, national or ethnic origin, colour, religion, language, or any other status. They are not supposed to be granted by any state, they are supposed to be innate and universal.

Another important aspect was the Universal Declaration’s pursuit of uniformity. Historically, there were significant variations in the rights protected in different states. The Declaration sought to establish a clear baseline of protections applicable across different states and to ultimately build that out into a binding international treaty. We will see in the chapter on the United Nations (UN) that it had mixed success in this endeavour.

Thirdly, the arrangements for overseeing the implementation of rights within states varied significantly. In some states, rights were justiciable (e.g. the United States of America), in others, they were not, and states involved a variety of different parties, from clergy to judges and other state officials, in the implementation of rights protections. The Declaration and the treaties that followed it sought to make the protection of rights a concern of the wider international community, involving other states and creating international organisations to oversee implementation. Throughout this book we will explore the degree to which international human rights law succeeded in these objectives, but first it’s important to establish where international human rights law actually comes from.

Sources of International Human Rights Law

The Statute of the International Court of Justice sets out the main sources of international law.

We can see examples of each of these sources playing a significant role in international human rights law.

International Conventions

International Conventions (or treaties) are perhaps the most important source of international human rights law. A treaty is defined in the Vienna Convention on the Law of Treaties as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. Treaties establish the body of rights that are subject to international protection, establish international organisations to oversee their implementation and set out many of the rules governing their operation.

International treaties have created the foundations of international human rights law. The United Nations, which has overseen the development of international human rights law globally for over 80 years, was founded by an international treaty – the UN Charter. Multi-lateral treaties form the basis for international human rights law across the world, with the UN adopting 9 core international human rights treaties over decades

1. International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965)
2. International Covenant on Civil and Political Rights (ICCPR) (1966)
3. International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966)
4. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979)
5. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) (1984)
6. Convention on the Rights of the Child (UNCRC) (1989)
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) (1990)
8. International Convention for the Protection of All Persons from Enforced Disappearance (CPED) (2006)
9. Convention on the Rights of Persons with Disabilities (CRPD) (2006)

As we will see in the chapter on the UN, the UN originally intended to quickly adopt a single, binding international treaty to give effect to the provisions of the UDHR. However, this did not come to pass and instead two treaties were adopted almost 20 years after the UDHR. This, and other factors, prompted the parallel development of regional systems of human rights protection, which are also underpinned by multi-lateral treaties. These regional systems, including the European Convention on Human Rights  overseen by the European Court of Human Rights, the American Convention on Human Rights overseen by the Inter-American Commission and Court and the African Charter on Human and Peoples’ Rights, overseen by the African Commission on Human Rights and the African Court of Human and Peoples’ Rights play an important role in international human rights law as we will see in the chapter on regional systems of human rights protection.

States must consent to be bound by the terms of a treaty for it to apply to them. They can express this consent by having a person, known as a plenipotentiary, sign the treaty on behalf of the state. For multi-lateral international human rights law treaties, signatures are usually made subject to ratification. The signature does not establish the consent to be bound. However, it is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation, under article 18 of the Vienna Convention on the Law of Treaties, to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.

States then deposit an instrument of ratification at a later date, usually once they have completed the necessary domestic steps for the state to be bound by the treaty. This might involve passing legislation through their domestic legislature to implement the treaty. There is often a time lag between signature and ratification as illustrated in the case of the American Convention on Human Rights here. Multi-lateral treaties will also often require a threshold number of states to ratify the treaty before it enters into force. Article 49 of the ICCPR, for example, required 35 states to ratify the Convention before it entered into force. This meant that while the treaty was concluded in 1966, it did not enter into force until 1976 when the 35th state ratified the treaty.

While these treaties are foundational, they are not static. They can be modified and supplemented over time through the use of protocols. Protocols are international agreements that supplement or amend a treaty. They can be used to create new procedures, like the Optional Protocol to the Convention against Torture that creates an inspection system for places of detention, to add new substantive provisions to the treaty, or to change the terms of a treaty, like Protocols 11 and Protocol 14 to the European Convention on Human Rights, which completely changed the institutional architecture of the European Court of Human Rights. A protocol is ‘optional’ because it is not automatically binding on States that have already ratified the original treaty and states can choose whether they agree to it or not.

Customary Law

Customary law is based predominantly on State practice. It is created by two elements – usus and opinio juris. Usus is an objective element referring to established, widespread and consistent state practice. In essence, the States must be acting in a certain way consistently on the international stage over a period of time for this criterion to be met. The second element is opinio juris, which refers to the subjective view of States i.e. their opinion as to the law and the legal character of their activities. This quote from the North Sea Continental Shelf Case at the International Court of Justice, illustrates that it is not enough that the State is observed to be acting in a certain way, it must also be shown that a State is acting that way because it believes it has a legal obligation to do so:

A lot of international human rights law has become customary law over time as states have shown both usus and opinio juris in complying with obligations. The Universal Declaration of Human Rights is an example of this.

General Principles

The statute also refers to general principles of law recognized by civilized nations as a source of international law. This is perhaps the least clear of the sources listed and the International Law Commission is currently undertaking a lengthy study of the subject. The International Law Commission’s special rapporteur released his first report on the subject in 2019. It identified both general principles of law derived from national legal systems and general principles of law formed within the international legal system as sources consistent with the statute. These principles can serve various functions. They can help fill gaps in international law, they can help courts to interpret human rights law (see for example Golder v UK at the European Court of Human Rights and Advisory Opinion OC-23/17 at the Inter-American Court of Human Rights), they can even serve as a direct source of rights and obligations themselves (see Article 12 Articles on the Responsibility of States for internationally Wrongful Acts).

There are clear overlaps between human rights and general principles and these are particularly evident in the context of criminal justice. The International Law Commission in its 1949 Yearbook, for example, identified the right to self defence as a general principle of law and this is clearly reflected in different human rights treaties (e.g. the European Convention on Human Rights (Article 6(3)). Equally, some of the core principles of human rights discussed in a later chapter, have been identified as general principles of law recognized by civilized nations. The Inter-American Court in Advisory Opinion OC-18/03 has recognised the principle of equality before the law, equal protection before the law and non-discrimination as a general principle of law, which is also a core principle of human rights law.

Judicial Decisions

States are the duty bearers in international law, so the primary responsibility for protecting rights falls on them. Domestic courts should, and regularly do, play a critical role in protecting human rights. While this often occurs through interpretation and application of constitutional law, the substance of the rights in international treaties regularly align with domestic constitutional law. Where gaps or deficiencies in protection arise domestically, international courts and treaty bodies can act as a failsafe. As we will see in the history chapter, the development of international judicial mechanisms to protect human rights goes back a long way to the anti-slavery treaties of the 19th century and the deployment of international courts to oversee protections against discrimination under the League of Nations system in the early 20th century. Since then, we have seen the proliferation of different judicial and quasi-judicial bodies with mandates to interpret and apply international human rights treaties develop across the world. In the regional systems, the European Court of Human Rights, Inter-American Court and African Court all play important roles in interpreting and applying human rights law. The European Court of Human Rights, in particular, has conferred a right to individual petition on hundreds of millions of people across Europe, allowing them to bring cases concerning human rights violations directly to the court for adjudication. Within the UN system, treaty bodies have gained the ability to hear individual communications alleging rights violations by states, interpreting the law and applying it to the specifics of the individual cases when states have acceded to additional protocols to the treaties underpinning the treaty body.

Interpreting and applying the law in this way is particularly important in the context of international human rights law. The provisions of international human rights treaties are often drafted in vague terms. If we take the example of Article 3 of the European Convention on Human Rights (discussed further in this chapter), it states “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. While the law establishes a clear negative obligation, it leaves many questions unanswered – what constitutes torture? What constitutes degrading or inhuman treatment? What is a punishment? Does imprisoning someone amount to torture?

As such, judicial decisions can play an important role in answering many of these questions defining torture (Akkoc v Turkey) inhuman (Kudla v Poland) and degrading treatment (Lyapin v Russia) through the jurisprudence of the European Court of Human Rights and interpreting the scope of the protections offered by the provision to include things like non-refoulement (Soering v United Kingdom). This process of adjudication has facilitated the gradual development of international human rights law much more than the treaty making process.

Teachings of the most highly qualified publicists

This is another confusing source listed by the statute. The terms used are quite ambiguous, the “teachings” are generally understood to refer to written works, such as treatises, monographs and other texts. Similarly, the term “highly qualified publicists” does not appear to refer directly to tangible qualifications (e.g. university degrees), but also takes into account experience and working knowledge. The International Law Commission, mentioned above, clearly falls into this category and is comprised of academics, diplomats, government officials and people working for international organisations. Groups of experts, like the European Commission for Democracy through Law (Venice Commission) and the special procedures discussed in the UN chapter clearly also fall within this category. The work of these different groups can often be used to aid the interpretation of different provisions and provide insight into the origins of different treaty elements which can be influential in the work of courts and treaty bodies.

Soft Law

Finally, so-called soft law has played an important role in human rights law. Declarations fall into this category. They are not usually legally binding on states and they are generally used to declare political aspirations or intentions of states rather than legal rules. In the context of human rights law, declarations have often preceded the later development of treaties. The UDHR served as the basis for the ICCPR and ICESCR, while the American Convention on Human Rights developed the protections set out in the American Declaration on Human Rights. Memorandums of understanding can be used to show agreement between states on a specific issue. These have been used, for example, to regulate extradition and the transfer of people between jurisdictions. Soft law can also be influential in the interpretation of international human rights law because under Article 31(3)(a) of the Vienna Convention on the Law of Treaties “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions” can be used to aid interpretation of a treaty. The exchange of diplomatic correspondence is also central to the process of derogation under international human rights law as states are required to communicate via diplomats that they are derogating from an obligation under International Human Rights law to the UN or another body.

International Law – The Best We Have?

In the chapter examining core principles of international human rights law, several core principles are examined including universality, indivisibility and inalienability. Yet, as a system for delivering human rights protection, international law has significant shortcomings, which can even counteract some of these fundamental principles.

As we noted above, states must consent to be bound by a treaty before it applies to them. The principle of state consent is foundational to the system of international law as the ICJ observed in the Lotus  case

This poses a clear barrier to the establishment of a universal baseline of standards of treatment for humans as states can opt in or out of the treaties at their discretion. We will see in the chapter on regional human rights systems that states can withdraw their consent to be bound by some human rights treaties. Article 78 of the American Convention on Human Rights, Article 58 of the European Convention on Human Rights and Article 21 of the Convention on the Elimination of Racial Discrimination permit states to withdraw from them in certain circumstances. In the chapter on the scope of human rights obligations, we will see that states can also issue reservations to international human rights treaties. These are unilateral statements (see article 2 Vienna Convention on the Law of Treaties) which purport to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Both of these measures arguably undermine the universality of the protection human rights law is trying to establish and the idea that they are innate to all human beings. In a similar vein, territoriality poses a further barrier to the realization of universal human rights standards. As we will examine in the chapter on the scope of human rights obligations, states’ jurisdiction is primarily territorial. Once a state ratifies a treaty, it guarantees the rights within its territory. However, beyond their territory the obligations on the state are much less clear.

The absence of a single, centralised rule-maker within the international legal system has also impacted international human rights law. The UN has clearly played an important role in the development of international human rights law, as we will see in the UN Chapter. It has created a range of different international human rights law treaties on civil and political rights, children’s rights and other topics. However, other international organisations have created parallel rights protection measures across the world. As we will see in our regionalisation chapter, international organisations such as the OAS, Council of Europe and African Union have established regional rights protection regimes, overseen by regional courts. Other treaties on a range of different rights subjects have also been adopted by these organisations, with similar subject matter to the UN treaties. While the reiteration of protections can serve an important function in international law, particularly when trying to identify custom, the parallel existence of these organisations and treaties has at times contributed to a fragmented rights protection landscape in which it can be unclear which rules apply and where.

There is also a disconnect between those with the capacity to cause harm to people and those responsible for upholding human rights law. Under international human rights law, states bear the responsibility for protecting the rights in the treaty. Yet a range of other parties have the capacity to infringe people’s rights. Businesses might discriminate against people in employment matters. Armed groups might arbitrarily detain people. People working on behalf of international organisations, like United Nations peacekeepers, could arbitrarily kill people during a military operation. Yet none of these non-state actors are directly obliged under international human rights treaties to protect the rights of the individuals they harm. While this is changing slowly, with international organisations starting to become parties to international human rights law treaties (see e.g. Article 44  Convention on the Rights of Persons with Disabilities) and international law directed at the human rights obligations of businesses being developed , it nonetheless amounts to a serious gap in the legal protection of rights.

The absence of a single, integrated court system in international law is also problematic. In domestic contexts, we typically see courts structured in a pyramid with an apex court, for example, a supreme court or Court of Cassation, at the top. This court has the power to override the rulings of lower courts. Yet, as we will see in the UN and regional systems chapters, a range of courts and quasi-judicial bodies can pronounce on the meaning and scope of international human rights law, from treaty bodies, like the UN Human Rights Committee, to regional courts, like the Inter-American Court of Human Rights. This means that different bodies across the world are interpreting and applying the same rights independently of each other and where differences in interpretation arise, there is no clear superior court to resolve them. Thankfully in practice these bodies will often draw on one another’s rulings when making decisions and other tools, such as General Comments issued by treaty bodies, can serve an integrative function, summarizing the law in different areas.

International law also strongly encourages states to adhere to the principle of non-intervention in their international activities. As the ICJ observed in the case Concerning Military and Paramilitary Activities in and Against Nicaragua this means that every sovereign state should be allowed to “conduct its affairs without outside interference” and the principle “forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States”. It is also reflected in Article 2(7) UN Charter

While the exact limitations this creates on states are open to debate, states are clearly discouraged from poking their noses into matters that other states consider to be their own domestic affairs. Yet international human rights law relies, to an extent, on states doing just that. International human rights treaties are reciprocal agreements between states to guarantee certain rights protections to people within their own jurisdiction. They are making a promise to other states to conduct their domestic affairs in a certain way and the other states have an interest in ensuring the other states uphold their obligations. Yet if they are simultaneously prohibited from any intervention in the domestic affairs of that state, a separate state’s ability to ensure the promise is upheld is clearly undermined. It is one of the reasons why, despite many human rights treaties including provisions for states to take cases against one another for breaching the terms of the treaty, such as Article 33 of the ECHR, inter-state cases of this nature are rare in international law.

In spite of these various shortcomings, international law remains the only real mechanism through which states can seek to establish any semblance of a universal system for the protection of human rights across the world. While the road to human rights protections is slow, uneven and at times completely blocked, we will nonetheless see, throughout this book, examples of situations where human rights law has delivered transformative improvements in the lives of countless people – women, children, disabled people, victims of slavery etc. The road is long, but it has proven itself worth travelling.

Chapter Outline

This book is comprised of 16 chapters addressing a range of topics and offering an introduction to the subject of international human rights law.

Chapter 1 explores the history of international human rights law. It looks at how the law has developed from domestic constitutional protections into international legal protections. It explores some of the philosophical underpinnings of human rights and key milestones in the development of this body of law.

Chapter 2 examines core principles of international human rights law. It introduces the principles of human dignity, equality, indivisibility, interdependence, the rule of law, universality and proportionality. It also examines how these principles relate to one another and how they are reflected in different sources of international human rights law and in the jurisprudence of treaty bodies and courts.

Chapter 3 examines different types of obligations in international human rights law. It explores the different generations of rights identified by Vasak and key differences between obligations that underpin human rights law, such as positive and negative obligations and economic, social and cultural rights and civil and political rights.

Chapter 4 looks at the scope of international human rights law. This chapter considers how the obligations in international human rights law can be limited in different ways, for example through reservations. It also looks at the concept of state responsibility and related concepts like jurisdiction and attribution.

Chapter 5 looks at the UN system of international human rights protection. It explores the historical differences between economic, social and cultural rights and civil and political rights that emerged early in the UN’s history. It introduces the core human rights treaties and some of their key features. It also examines the institutional human rights architecture of the UN looking at the role played by the treaty bodies, human rights council and others.

Chapter 6 looks at three regional systems of human rights protection, the European, Inter-American and African systems. It looks at how the process of regionalisation emerged in international human rights law and some of the advantages and disadvantages this development creates. The chapter also compares the development of the different institutions developed to interpret and apply the underlying conventions in the regional systems over time.

Chapter 7 examines the right to life in international human rights law. It looks at who the right applies to and when it begins to offer protection. It explores the different types of obligations protected by the right and discrete areas, including the use of force, the investigation of deaths, the protective obligations applicable to the state and the different obligations it has to properly regulate to protect life.

Chapter 8 examines the subject of human rights and the environment. It examines environmental protection provisions in international human rights law and the role that climate litigation is playing in international human rights law. It also explores developing issues of corporate responsibility and rights of nature.

Chapter 9 looks at refugee protection. It introduces the central measures of protection for refugees granted under international law and their incorporation into human rights law. It also analyses core principles in refugee law, such as non refoulement.

Chapter 10 considers socio-economic rights. It looks at the nature of the obligations in this body of law and important ideas in understanding the subject, including progressive realization and minimum core protections. The chapter considers the role that courts play in protecting socio-economic rights and examines important examples of this type of right with the right to food and the right to health.

Chapter 11 examines the prohibition on torture inhuman and degrading treatment or punishment. The chapter offers definitions for each of the key terms and the absolute nature of the prohibition is considered in detail. The chapter looks at the different sources of protection of this right, including the ICCPR, regional treaties and the UNCAT.

Chapter 12 looks at the prohibition of slavery. It considers the historical development of the prohibition and its modern context and linkage to human trafficking. The chapter draws distinctions between slavery, servitude and forced labour and examines some of the recent case law addressing the subject in different forums.

Chapter 13 examines Freedom of Religion and Belief in international human rights law. The chapter explores a number of salient issues including how beliefs and their manifestation in public are protected under the law, restrictions on religious symbols, clothing and iconography. In addition, the chapter explores how this right interacts with other rights, including freedom of expression, association and the prohibition on discrimination.

Chapter 14 examines the protection of children’s rights in international law. The chapter looks at the historical development of the United Nations Convention on the Rights of the Child and the different methods used to incorporate its protections into domestic law. The chapter introduces the general principles underpinning the UNCRC and explores some of the challenges inherent in balancing children’s rights with family autonomy, state authority, and cultural diversity.

Chapter 15 considers the topic of gender and human rights. It examines the women’s rights movement over time and the key elements of the UN Convention on the Elimination of Discrimination Against Women (CEDAW). It looks at some of the critiques of the treaty and discrete themes germane to the subject like gender-based violence and women’s reproductive health. The chapter also considers contemporary debates about sexual orientation and gender identity.

Chapter 16 looks at human rights and criminal justice. It explores many of the core principles underpinning the criminal justice system, including the principle of legality, judicial independence and due process. It outlines the procedural safeguards set out in different treaties and considers the challenges of balancing the rights of the accused against the rights of victims.