1.

Thomas Buergenthal, “The Evolving International Human Rights System” (2006)

100(4) American Journal of International Law 783

In this influential article, Judge Thomas Buergenthal offers a sweeping overview of the historical
development, institutional landscape, and key challenges facing the international human rights
system. Drawing on his experience as a judge at the International Court of Justice and former
Inter-American Court of Human Rights judge, Buergenthal traces the evolution of the system
from its origins in the aftermath of World War II to the early 21st century.

Foundations and Normative Growth

Buergenthal begins by situating the birth of the modern human rights system in the post-World
War II era, particularly with the adoption of the Universal Declaration of Human Rights (UDHR)
in 1948. While the UDHR was non-binding, it provided a powerful moral and normative
foundation for the codification of human rights. Over time, this foundation solidified through
legally binding treaties, most notably the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR),
adopted in 1966 and entering into force in 1976. Together with the UDHR, they form the
International Bill of Human Rights.

He notes the important expansion of specialized human rights treaties during the late 20th
century, covering topics such as racial discrimination, torture, women’s rights, children’s rights,
and the rights of persons with disabilities. This normative expansion reflects the growing
consensus among states and civil society that human rights deserve legal recognition and
protection.

Implementation Mechanisms

Buergenthal distinguishes between treaty-based and charter-based mechanisms within the UN

system. Treaty bodies, such as the Human Rights Committee (for the ICCPR) and the Committee
Against Torture, monitor compliance through state reporting procedures, individual complaints,
and general comments. However, their effectiveness is constrained by limited enforcement
powers and dependence on state cooperation.

Charter-based mechanisms, on the other hand, include the now-replaced Commission on Human
Rights and its successor, the Human Rights Council, as well as the Special Procedures system of
independent experts and rapporteurs. Buergenthal critiques the political nature of these bodies,
especially the practice of selective criticism and the election of human rights violators to the
Council.

A notable contribution of the international system is the increasing justiciability of human rights,
particularly through regional courts such as the European Court of Human Rights, the Inter-
American Court of Human Rights, and to a lesser extent, the African Court on Human and
Peoples’ Rights. These institutions provide individuals with the ability to bring complaints
directly against their governments—a groundbreaking shift in international law.
Role of Civil Society

Buergenthal strongly emphasizes the role of non-governmental organizations (NGOs), academia,

media, and the general public in enhancing accountability. NGOs act as watchdogs, submit
shadow reports, and mobilize public opinion, often supplementing the limited capacities of
formal legal institutions.

Challenges and the Way Forward

Despite major advances, Buergenthal cautions that the international human rights system faces
significant limitations. Chief among them are:

 Lack of enforcement mechanisms for many treaty bodies

 Politicization of human rights discourse in international fora
 Insufficient state compliance and persistent impunity
 Resource constraints and limited access for marginalized populations

He concludes that the future effectiveness of the system depends on stronger domestic
implementation, improved cooperation among global and regional institutions, and the continued
engagement of civil society. Without these factors, the system risks being undermined by
symbolic rhetoric rather than genuine protection.

2. Christopher Michaelson, “Human Rights as Limits for the Security Council: A

Matter of Substantive Law or Defining the Application of Proportionality?” (2014)
19(3) Journal of Conflict & Security Law 451

In this article, Michaelson addresses an important but understudied question in international law:
To what extent does international human rights law constrain the powers of the United Nations
Security Council (UNSC)? His focus is on how human rights norms intersect with the Council’s
authority under Chapter VII of the UN Charter, particularly regarding coercive measures such as
sanctions and military interventions.

Security Council Powers and Legal Boundaries

Michaelson begins by outlining the Security Council’s broad mandate to maintain international
peace and security. Under Chapter VII, it may take binding measures, including economic
sanctions and the use of force, without requiring the consent of the state involved. This grants the
UNSC a quasi-legislative role, often operating above traditional checks and balances.

The article questions whether human rights norms impose legal limits on these powers. While
the UNSC is not party to human rights treaties in the same way as states, Michaelson explores
whether customary international law or jus cogens norms might still bind the Council.

Two Competing Frameworks

He compares two primary legal approaches:

1. Substantive Legal Limits Approach

This view holds that certain fundamental rights—such as due process, the prohibition of
torture, and non-discrimination—cannot be violated, even by Security Council
resolutions. Proponents argue that jus cogens norms and the UN Charter’s own purposes
(Article 1(3)) imply that the UNSC is not above international law.
2. Proportionality-Based Approach
Alternatively, Michaelson supports a proportionality framework, where human rights are
not absolute limits but factors in evaluating whether a UNSC measure is reasonable and
necessary in light of its security objective. This approach reflects how many national and
international courts assess state limitations on rights.

Case Studies: Targeted Sanctions and Due Process

Michaelson applies these theories to cases involving targeted sanctions, such as asset freezes or
travel bans against individuals linked to terrorism. He highlights Kadi v. Council of the EU
(European Court of Justice) and other judicial opinions that criticized UNSC sanctions for
violating due process rights when there were no fair procedures for delisting.

He argues that proportionality offers a middle ground that acknowledges the Council’s unique
authority while still requiring it to account for human rights impacts.

Institutional and Practical Challenges

Michaelson concedes that enforcing human rights standards on the UNSC is institutionally
difficult. The Council operates largely free from judicial review, and member states are reluctant
to cede authority. However, he emphasizes that soft law instruments, state practice, and judicial
scrutiny by regional courts can indirectly pressure the Council to improve its procedures and
respect human rights.

Conclusion

Michaelson concludes that while it may be unrealistic to subject the Security Council to formal
legal review, a proportionality-based accountability framework is both principled and pragmatic.
It encourages the Council to calibrate its measures in light of human rights concerns without
undermining its effectiveness in maintaining peace and security.

3. Samuel Moyn, The Last Utopia: Human Rights in History, Chapter 1

Samuel Moyn’s The Last Utopia challenges dominant narratives about the historical rise of
human rights. In Chapter 1, he introduces his core thesis: human rights did not emerge
organically from World War II or the Holocaust, but only rose to global prominence in the
1970s, filling the ideological vacuum left by the decline of revolutionary and anti-colonial
movements.

Debunking the Post-War Myth

Moyn opens by questioning the widely accepted origin story of human rights. He argues that
while the UDHR (1948) is often cited as a founding moment, human rights remained marginal to
global politics in the 1950s and 60s. During this period, superpower rivalry, Cold War politics,
and national sovereignty took precedence over rights-based frameworks.

Even during decolonization, leaders and movements in the Global South preferred the language
of self-determination, economic justice, and national sovereignty over individual rights. These
political projects, not liberal human rights, were the dominant utopian visions of the mid-20th
century.

The 1970s: Birth of a Moral Language

According to Moyn, human rights only began to function as a powerful global moral language in
the 1970s. This shift coincided with:

 The collapse of anti-colonial utopias and loss of faith in post-independence leaders

 The decline of socialist revolution as a viable alternative
 The crisis of liberalism in the West (e.g., Watergate, Vietnam War)

In this context, human rights emerged as the "last utopia"—a moral vision that avoided the
failures of ideology, promised universality, and resonated with both liberal and conservative
constituencies.

Amnesty International and the Rise of NGOs

A key example of this shift is the rise of Amnesty International, founded in 1961 but gaining real
influence in the 1970s. Amnesty’s focus on prisoners of conscience, individual cases, and global
mobilization demonstrated a new style of human rights advocacy that moved away from state-
centered legalism toward grassroots, media-based activism.

This also marked a turn to individualized, decontextualized narratives of suffering, which could
attract public sympathy across ideological lines. Human rights thus became depoliticized,
detached from grand systemic critiques.

Implications

Moyn’s account does not reject the value of human rights but repositions them historically. He
challenges the idea that they are the inevitable legacy of postwar justice. Instead, he sees them as
a political project that gained traction precisely when other utopian projects failed.
This reframing has significant implications for understanding contemporary human rights
advocacy. It suggests that rather than being a stable tradition, human rights are contingent,
recent, and open to reinterpretation in each historical context.

Note:

- Positive and negative obligations la gi?

- Proportionality

Article 6 international covenant civil and political rights

Article 3 Universal declaration of human rights

Human rights system since 1929 (Declaration of the International Rights of Man)

International Bill of Rights

- UN Charter
- Universal Declration of Human Rights
-

UN Charter (1945): Preamble and Article 55

HR bodies under the Charter system

Treaty based system

General Assembly and Security Council

De lege ferenda:

Derogation

Article 31(3) Vienna