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Post No.: 0792ihrl


Fluffystealthkitten says:


While Furrywisepuppy got interested in International Humanitarian Law (IHL), I got interested in International Human Rights Law (IHRL). So like what my buddy did with IHL, this condensed rundown of IHRL is primarily designed to pique your interest in this area of law so that you might decide to study it further. Meow.


It may help to read his series first if you haven’t already, as I’ll try not to repeat the things he’s already covered that cross over with IHRL. I will similarly be mixing various treaties together and covering them in general terms so you’ll need to refer to each specific treaty for their specific details and bear in mind that not all States have signed or ratified all of the IHRL treaties that’ll be mentioned. This therefore isn’t intended as legal advice. Case law builds and new treaties can be agreed to in the future too (like hopefully something that builds a body of International Fluffy Animal Rights Law one day! :3)


What’s key here is to pick up the basic concepts and vocabulary of human rights so that you can better understand the human rights stories that you may read in the news. It’s also useful to generally understand international law better I reckon…


Okay then. Human rights first developed within domestic legal systems and constitutions at the national level before they evolved to become part of international human rights. Domestic law regulates the relationship between the State and the individual, and international law regulates the relationships between sovereign States.


The main body of IHRL was developed after WWII. Probably the two most significant IHRL covenants are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both were adopted in 1966.


The UN Human Rights Committee, and the UN Committee on Economic, Social and Cultural Rights, monitor their performance – these bodies can hear complaints from individuals and make general observations on the interpretations of those covenants.


Other human rights treaties adopted at the international level include the UN International Convention on the Elimination of All Forms of Racial Discrimination and the UN Convention on the Rights of the Child. The UN currently has in total 9 core international human rights treaties or instruments that cover racial, women and disability discrimination, torture, cruel or other degrading treatments or punishments, enforced disappearances, protecting economic, social and cultural rights, civil and political rights, children’s rights, and migrant workers and their families. Not all members of the UN have signed, or signed and ratified, them all; and even if ratified, certain members may have expressed individual reservations to limit the scope of their effects, which is something to bear in mind (e.g. some States still want to keep the option of employing capital punishments). There are also 9 other optional protocols.


Unlike IHL, human rights laws have also been developed at the regional level – namely via the adoption of the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights (ACHPR). The European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples’ Rights, are the respective judicial mechanisms tasked with guaranteeing respect for human rights in those regions. Additionally, political bodies such as the Inter-American Commission on Human Rights, and the African Commission on Human and Peoples’ Rights, have been set up.


It can be quite easy to confuse the ‘Conventions’, ‘Charters’, ‘Committees’, ‘Courts’ and ‘Commissions’, and there are ‘Councils’ too, which are designed to enforce IHRL, such as the UN Human Rights Council, and the Council of Europe!


The Universal Declaration of Human Rights (UDHR) enshrines 30 rights and freedoms that belong to all human beings. This was about learning from the horrors of the two World Wars. The UDHR has inspired many State constitutions or bills of rights, and human rights treaties or organisations, including the UN General Assembly; and is often cited as evidence of customary international law.


Although both economic, social and cultural rights (generally the ‘socialist’, positive obligations e.g. the right to social security, food, health, housing, education, work) and civil and political rights (generally the ‘democratic’, negative obligations e.g. the freedom from discrimination, right to privacy, freedom from slavery) are considered to be universal, interdependent, indivisible and equally important – they aren’t necessarily equal for they require different treatments because, broadly speaking, the former need investment from States (e.g. via taxes, which are subject to economic conditions) to fulfil whereas the latter don’t as much.


Just to crucially clarify – positive obligations involve actively intervening (e.g. feed the starving or house the homeless, where generally an omission of action could result in a violation), whereas negative obligations involve abstaining from interference (e.g. don’t kill or don’t steal, where generally a commission of action could result in a violation).


So the right to housing and the freedom of/from religion, for example, will impose different requirements on the State to each other. Having said that, protecting properties and civil rights in the courts costs money too (e.g. for training the police), and States sometimes need to act when protecting people’s freedoms rather than think that a ‘leave everyone alone’ approach is always sufficient (e.g. when protecting newspaper outlets from threats of violence). Moreover, guarantees to education, healthcare, decent wages, welfare, etc. are necessary for the enjoyment of the freedoms of expression or thought, peaceful assembly, the joining and forming of trade unions, self-determination, and the right to vote, for instance.


Human rights might be violated through action, acquiescence or omission. Violating one right doesn’t necessarily imply violating another right – but sometimes fulfilling one right to its fullest extent can hinder the fulfilment of another right; or an individual’s right can clash with a collective responsibility or vice-versa (e.g. the freedom of speech leading to a loss of someone else’s privacy, or the right to vote leading to the majority discriminating against the minority).


Nonetheless, this doesn’t mean that any right is more superior or subordinate than another. And although the right to health and the right to life ultimately protect the lives of individuals, a failure to achieve the highest attainable level of health for citizens doesn’t automatically imply that the right to life has been violated – certain rights are obligations of means more than result i.e. although all human rights constitute goals that ought to be pursued by States, a State only has to genuinely try its best to fulfil certain economic and social rights with what resources it has (e.g. when trying to protect the right to health via hospitals or the right to education via schools, because these things cost money that not all States have).


Human rights violations do however happen. Yet those who commit them don’t always get punished. A law and the enforcement of that law aren’t the same things. That’s a major criticism that many observers have put forward. (It’s like setting climate target agreements – if they’re broken, which States really get punished for it?) You might learn about these human rights – even those that your own country has ratified – yet can easily think of instances when and where they have been or are being violated in your own country. There are plenty of hypocrites. We hear politicians condemn the human rights violations of other countries yet still continue to trade (sometimes arms!) with them too.


There’s presently no international court with universal territorial jurisdiction to enforce IHRL. There are some quasi-judicial bodies at UN level (much of international law is actually full of ‘soft law’ instruments that are quasi-legal or aren’t quite legally binding). The International Criminal Court (ICC) has jurisdiction over a limited number of crimes (see Post No.: 0781). Plus there are regional courts like the aforementioned European Court of Human Rights. But the enforcement of IHRL is primarily the responsibility of nation States themselves. National human rights institutions (NHRIs) are domestic institutions with jurisdiction to promote, protect and monitor human rights law within their own countries (e.g. the Equality and Human Rights Commission in the UK or the United States Commission on Civil Rights in the USA).


Yet because the enforcement of IHRL is decentralised and ‘horizontal’ i.e. there’s no ‘world police force’ and it’s up to individual States to bring their own citizens and politicians, or other States via countermeasures or sanctions, to justice – whenever an obligation that’s owed to all States (erga omnes) is violated, the incentive for any single State to file a claim alleging a violation is weak because the diplomatic costs of doing so may be high and various retaliatory measures may be feared. This is less likely with something like a commercial treaty because of the direct economic costs to an injured State i.e. people and States are more likely to be proactive in protecting their own interests than those of others. So intervening in another State’s sovereign affairs can be costly to one’s own State, thus there’s a diffusion of responsibility and a classic collective action problem.


We, as citizens, might urge our own governments to do something about the serious human rights abuses committed by another country yet would – if we knew what intervening would entail – complain about spending our own tax monies and head of government’s time on interfering in foreign matters, or would complain about how economic sanctions like tariffs placed on certain goods imported from that violating country would also impact on our own businesses and lifestyles, in the form of sourcing less cheap goods, and thus impact on our own economy and livelihoods! Economic sanctions hurt civilians mostly.


States are nonetheless encouraged to take responsibility and to act, separately and jointly, to protect and uphold IHRL, no matter how many other States are involved. Although it remains imprecise and contested – ‘developed’ countries also have a responsibility to help develop the human rights of ‘developing’ countries; to help them out economically in return for improvements in their human rights. In general, so many modern challenges are international in nature – such as foreign military interventions, global investment, the migration of workers, and air and water pollution – and thus require proactive international cooperation.


We must understand that human rights treaties are agreed by States yet aren’t for the interest of States per se but are commitments made for the benefit of persons within their jurisdictions. Therefore compliance isn’t in the mutual interests of States but in the interests of the peoples under their jurisdictions. This does however mean that, unlike a trade treaty, one side violating a human rights convention doesn’t mean another side can also violate it. This is the principle of non-reciprocity.


Reservations – or caveats to a State’s acceptance of a treaty – might also make a mockery of treaties (like appending an ‘eating beef is fine’ reservation to an ‘agree to be a vegan’ convention(!)) However, as long as the main points are agreed and the primary object and purpose of a treaty isn’t compromised then isn’t it better to have a State bound by some provisions than none at all? I guess it’s whether one sees it as a ‘glass half full’ or ‘glass half empty’ scenario. Reservations that are incompatible with the object and purpose of a treaty disputably sometimes pass through though. (One notorious example is the case of the USA and the ICCPR. The USA has a pattern of stipulating reservations to many human rights treaties. In fact, the USA, as it currently stands, has failed to even sign (abide by) or ratify (legally bind themselves to) many human rights-related treaties that most other countries in the world have, including those related to children’s rights and women’s rights – citing maintaining sovereign congressional control as the reason.)


Meow. This is just the start of our peek at International Human Rights Law. Let’s take a break, pace ourselves and continue on this subject another time.


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