International Human Rights Law
In this article, we shall discuss elements of the history of human rights, and development of international human rights law in the international system. We shall examine the events that lead to the formation of international human rights law, the actually legal documents and institutions that arose out of this movement, as well as additional enforcement mechanisms. In addition, we shall discuss the challenges to implementing human rights protections, and related to this, the difficulties in carrying out international human rights law.
History of International Human Rights Law
While some forms of codified human rights have existed for centuries (whether in governments pacts, constitutions, or religious documents), it would be only until relatively recently that international human rights law would become a clear type of law within international law. States had a series of rights within their own legal systems, there were a some issues that were receiving attention as it pertains to international law (rules of war, and fighting against slavery were two examples) (DeLaet, 2006). However, again, the international human rights legal system that we know and understand today was not yet developed.
In order to understand when the modern international human rights law became a part of international law, it is imperative that one looks at events within the past century, and particularly in the 1940s onwards. In fact, the more recent history of the development of international human rights law has centered primarily out of the events of World War II. Following the acts of genocide committed by the Nazis in Germany, the international community worked to establish an international organization–the United Nations–to help ensure international security, as well as states advocating the inclusion of human rights within the mandate of this organization. It was the creation of the United Nations that spurned a legal international human rights law movement in the world. From the 1940s onwards, the number of international legal documents with regards to human rights increased greatly. And while some existed in earlier decades (such as the Geneva Conventions, ILO labor documents, etc…), this time period brought forth some of the most comprehensive human rights declarations, treaties, and covenants the world had ever seen.
The idea behind all of this–and what international human rights law was created to do–was to ensure the protection of the individual, as well as groups from human rights violations. And while individuals frequently commit human rights violations against other individuals, the international human rights movement was primarily focused as a result of state rights abuses against populations. The major concern has been trying to find ways to check state behavior with regards to rights abuses. States are often the biggest violators of human rights, and thus, international human rights was established to prevent state violations.
Thus, human rights law–from the late 1940s and onwards–places the center of responsibility on the state to ensure the full human rights of individuals. Thus, the state must stop from committing violations, and if violations are taking place in their country, the government must do all that it can to stop such abuses from continuing to take place. Now, this is not to say that international human rights law only focuses on the state; non-state actors have the same expectations to not be a rights violator. And international human rights documents place a responsibility on individuals with regards towards other individuals. But even here, there are also expectations for the state to act as a protector of the citizens, even if they are not the perpetrator of crimes (Shelton, 2002: 282).
International human rights law includes a number of treaties and conventions, constructed through states within international organizations, in which states then may sign and ratify. Once these conventions are signed, and then ratified by the governments of each state, they become legally binding in international law. These conventions serve a number of purposes. for example, there are “[g]eneral conventions, which concern all or a large portion of human rights and [are] adopted at the global or regional level.” There are slo “[t]opical specific conventions, which are intended to guard against particular human rights abuses, e.g., genocide, war crimes, and crimes against humanity, slavery, traffic in persons, forced labor, and torture.” In addition, we also see “[c]onventions on group protection, which correspond to the special needs of distinct groups, such as children, indigenous peoples, migrants, refugees, stateless persons, women, workers, and combatants, prisoners, and civilians in time of armed conflict.” Moreover, we may also observe “[c]onventions prohibiting discrimination, based on race or sex, and in education, employment, and occupation” (Claude & Weston, 2006: 11).
Now, it is important to note that while establishing a convention is a remarkable and very important achievement, it is not the end goal. The idea behind a convention or treaty is to then be able to use that document to hold states accountable on human rights issues. These treaties, then coupled with enforcement mechanisms (often international enforcement mechanisms), are used as tools for the protection of human rights.
Types of International Human Rights Law
The types of categories of human rights within international human rights law continues to expand. For example, as DeLaet (2006) explains, “[t]he body of international human rights law now includes numerous binding treaties ranging from general treaties calling for the protection and promotion of basic civil and political as well as economic and social rights to treaties demanding human rights protections for particular groups, including women and children, to specialized treaties governing specific violations of human rights, such as torture and genocide” (25). Additional international human rights law documents include the rights for refugees, conventions against racism, documents calling to ensure rights for persons with disabilities, etc…
However, there are still holes within international human rights law. For example, one place where this exists is with regards to sexual orientation rights (DeLaet, 2006). Many international state leaders have been critical of passing specific documents calling for the equal rights based on sexual orientation. This has taken place by some Muslim majority leaders, the Vatican, and some other countries government representatives. So, while there is a great deal of international human rights law, there is still much more that can be done to ensure that all groups are represented.
Importance of International Human Rights Law
Human Rights Law has become a critical component of international law, and international relations in general. Just to think, that today’s wide catalog of rights conventions, treaties, organizations, and courts came about in well less than one century, is alone something to be applauded. But it is not just that the laws are in place; it is more than that. There is substantial evidence to show that international human rights law has made a strong impact on protecting human rights, and often, in altering state behavior in favor of human rights. Or, if the state has not shifted its behavior, enforcement mechanisms such the International Criminal Court serve to hold these leaders accountable. So, while the state may still be the most important actor in the international system, and while sovereignty continues to hold a strong place as a norm in international society today, international human rights law as a norm has been able to challenge some of those ideas of uncontested sovereignty, and have made aggressors and rights violators alter their behavior in a number of cases.
Enforcement of International Human Rights Law
Despite the progress made establishing human rights covenants, treaties, and human rights conventions, there are still numerous human rights abuses that go unpunished. The problem has to do not so much with what human rights laws are on the books, but rather, effective enforcement mechanisms to ensure that these treaties and conventions are being adhered to. Thus, “[t]his gap between idealistic rhetoric and reality helps to explain the continued existence of widespread human rights abuses across the globe. Thus, despite notable advancement in the development of international human rights norms, progress in the actual status of global human rights in practice has been less inspiring” (DeLaet, 2006: 26).
DeLeat, D. (2006). The Global Struggle for Human Rights. Boston, Massachusetts. Wadsworth Cengage.
Eitzen, D. S. & Zinn, M.B. (2011). Chapter 9, Changing Social Structures: Resistance and Social Movements, pages 269-313. Globalization: The Transformation of Social Worlds.
Shelton, D. (2002). Protecting Human Rights in a Globalized World. Boston College International and Comparative Law Review, Vol. 25, Issue 2, Article 7, pages 273-322.