9; Human Rights
1; Concept and Nature of International Human Rights Law
Human rights refer to the rights of individuals and groups recognized in international treaties,
declarations, and customary international law. These include civil, political, economic, social,
and cultural rights and the rights of minorities and people. They form a distinct and expanding
branch of international law, separate from national constitutional guarantees.
International human rights law grew out of ethical, philosophical, and religious traditions, but it
now exists as a legal system grounded in treaties, customary norms, and institutions. It
protects individuals regardless of nationality or status, distinguishing it from older doctrines
that only protected specific groups (such as aliens or minorities).
2; Historical Developments Before 1945
Before the UN Charter (1945) and UDHR (1948), individuals had virtually no direct
international rights. States alone were recognized subjects of international law. Protection
existed only indirectly, mainly through diplomatic protection, where a state could raise a claim if
its national was injured abroad. This protection was optional and did not cover how states treated
their own citizens.
Some early forms of group protections:
Minority treaties in the 19th century and after World War I protected Christian minorities in the
Ottoman Empire and later ethnic and religious minorities in Eastern and Central Europe. The
League of Nations acted as guarantor, with the PCIJ issuing advisory opinions on minority rights.
The mandates system under the League required mandatory powers to protect the inhabitants
of former colonies and guarantee fair labor conditions.
The International Labour Organization (ILO) emerged in 1919 and developed conventions on
labor rights with monitoring mechanisms.
Humanitarian law developed through treaties outlawing slavery, the 1864 Geneva Convention,
and later the Hague Conventions and Geneva Conventions. These norms protected limited
categories such as wounded soldiers or prisoners of war.
Despite these developments, none of these instruments recognized human rights as individual
legal entitlementsapplicable universally. Human rights issues remained part of a state's
domestic jurisdiction.
3; Post–World War II Transformation
The atrocities of World War II led to the creation of a comprehensive human rights regime. The
UN Charter (Arts. 55–56) committed member states to promote universal respect for human
rights. As Buergenthal notes, this internationalized human rights, limiting the scope of domestic
jurisdiction.
The Universal Declaration of Human Rights (1948) became the foundational text, providing a
common standard and later influencing customary law.
This era saw the development of the International Bill of Rights:
UDHR 1948
International Covenant on Civil and Political Rights (ICCPR) (1966)
International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966)
Together, these instruments recognized rights ranging from life, liberty, expression, fair trial, to
education, work, and health. They articulated obligations binding on states and inspired a wave
of additional treaties.
4; Expansion of Universal and Regional Human Rights Instruments
UN Treaties and Institutions
Major UN human rights conventions include:
CEDAW (women’s rights),
CERD (racial discrimination),
CAT (torture),
CRC (children’s rights).
Most of these conventions have treaty bodies composed of experts who examine state reports,
consider complaints, and interpret treaty provisions. Some allow individual petition, such as
under the ICCPR Optional Protocol.
These treaties and monitoring mechanisms form a dense global supervisory structure that
promotes compliance and clarifies state obligations.
Regional Systems
Three major regional systems developed:
Europe: European Convention on Human Rights (ECHR, 1950) Enforced by the European
Court of Human Rights, whose judgments are binding.
Americas: American Convention on Human Rights (ACHR, 1969) Inter-American Commission
and Inter-American Court form a dual system of protection.
Africa: African Charter on Human and Peoples’ Rights (1981), unique for including duties of
individuals and group rights. The African Court complements the Commission.
These regional systems function as quasi-judicial and judicial mechanisms, generating a large
body of jurisprudence that enriches international human rights law.
5; Rights Guaranteed
The UDHR proclaims a broad range of rights: right to life, equality before law, prohibition of
torture and slavery, fair trial, freedom of movement, thought, religion, expression, participation in
government, and socio-economic rights such as work, social security, health, and education.
The ICCPR and ICESCR developed these rights in more detail.
Key distinctions include:
ICCPR obligations are immediate (“respect and ensure”).
ICESCR obligations are progressive, based on available resources.
Both covenants recognize the right to self-determination, now considered customary
international law.
Various treaties refine and expand these rights (e.g., CAT on torture, CERD on racism). The
Genocide Conventionreflects principles binding on states even without consent.
6; Derogation, Limitations, and Scope
Human rights treaties allow limitations for reasons such as public order and security, but such
restrictions must be lawful, necessary, and proportionate.
Some rights—such as the right to life, freedom from torture, and prohibition of slavery—are non-
derogable, even in emergencies.
Treaties also contain territorial and jurisdictional clauses, interpreted by bodies like the ICJ to
permit extraterritorial application in some situations, such as occupation or foreign control.
7; Implementation and Enforcement
International human rights law operates through two systems:
A; Charter-Based System
Under the UN Charter, bodies such as:
Human Rights Council, Office of the High Commissioner for Human Rights, Special
Rapporteurs investigate violations, conduct fact-finding, and engage in dialogue with states.
Security Council interventions in extreme cases (e.g., creation of ICTY and ICTR) demonstrate
the link between human rights and international peace and security.
B; Treaty-Based System
Treaty bodies monitor compliance through:
State reporting, Individual communications, Inter-state complaints, General comments and
interpretations.
Their decisions, while not binding like court judgments, carry strong legal and interpretive
authority.
8; Domestic Implementation
8; Domestic Implementation
Human rights norms increasingly influence national legal systems. Domestic courts apply
human rights treaties either directly (where treaties are self-executing) or through implementing
legislation.
Some states give human rights treaties constitutional status. Courts often consult international
and comparative jurisprudence, creating a transnational dialogue that strengthens consistency
and fosters customary norms.
Conclusion
Buergenthal’s analysis shows that modern human rights law has evolved into one of the most
elaborate and dynamic branches of international law. Its development reflects a shift from
state-centered protection to individual rights, supported by extensive treaty bodies, courts, and
monitoring mechanisms. Human rights have moved from the margins to the center of
international legal and political discourse, shaping global expectations of state conduct and
generating an increasingly interconnected system of enforcement.