04. human rights

The question

The sub-unit on public international law observed that the individual human being is, in defined respects, a subject of international law, bearing rights and duties directly under it. The most developed expression of that observation is international human rights law, the body of law by which international law confers rights upon individuals and imposes on states the obligation to respect and protect them. This concluding sub-unit of the module examines that body of law, asking what human rights are as a matter of positive law, through what instruments and institutions they operate, and how they fit within the structure of the international order described earlier. The treatment is descriptive, concerned with the law and its institutions rather than with the contested questions of political theory that surround the subject, on which the course takes no position.

The concept and the individual as subject

Human rights are, as a matter of positive law, the rights that international law recognises as belonging to every human being by virtue of being human, which states are obliged to respect, protect, and fulfil. The defining feature of this body of law, and its principal departure from the classical international order, is that it makes the individual a direct beneficiary of international obligations, so that the protection of the individual becomes a matter of international concern and not solely of the internal affairs of each state.

This feature connects the subject to the analysis of sovereignty and subjects in the first sub-unit of the module. The classical international order was an order of states, in which individuals were objects of their own state's law and international law addressed states alone; the development of human rights law qualified that order by recognising the individual as a bearer of rights that international law protects, even against the individual's own state. The qualification is significant for the concept of sovereignty examined throughout the course, for it subjects the treatment by a state of persons within its territory, once regarded as the paradigm of internal sovereign authority, to standards established and supervised at the international level.

Consider a person who suffers a denial of fundamental protections at the hands of the person's own state. Under the classical order, the matter was internal to that state, and international law offered the individual no standing. Under international human rights law, the treatment of the individual engages the state's international obligations, and mechanisms exist, of varying strength, through which the obligation may be asserted. The example shows the structural innovation of the subject: the individual elevated from object to subject, and the treatment of persons made a matter of international law.

The concept of human rights as a matter of positive law, and the recognition of the individual as a direct subject of international obligations, are therefore the foundation of the subject, marking its departure from the classical order of states and qualifying the sovereign authority that order accorded each state over persons within its territory.

The principal instruments

International human rights law operates through a structure of instruments, and the distinction among their forms connects the subject to the discussion of hard and soft law in the previous sub-unit. The foundational instrument is the Universal Declaration of Human Rights, adopted by the United Nations in 1948, which set out a common standard of fundamental rights. As a declaration, it was in its origin an instrument of soft law, a statement of principle binding no state of its own force, yet of immense influence, and many of its provisions are now widely regarded as having passed into customary international law.

The Declaration was given binding form through the conclusion of treaties, and here the distinction between a declaration and a covenant becomes important. A covenant, in this context, is a treaty by which states undertake binding obligations to secure the rights it specifies, and the principal instruments are the two covenants adopted in 1966, one concerning civil and political rights and the other concerning economic, social, and cultural rights, which translated the principles of the Declaration into binding treaty obligations for the states that ratified them. These instruments, together with the Declaration, are often described collectively as the international bill of rights, and they are supplemented by further treaties addressing particular subjects, such as the prohibition of torture, the elimination of discrimination, and the rights of the child, each binding the states that ratify it. The structure thus moves from a foundational declaration of soft-law origin to a set of binding covenants and specialised treaties, illustrating the progression from soft to hard law described earlier in the module.

Suppose a state has ratified the covenant concerning civil and political rights. By that ratification the state assumes binding obligations under international law to secure the rights the covenant specifies to persons within its jurisdiction, and it submits to the supervisory mechanisms the covenant establishes. A state that has signed but not ratified, or that has ratified with reservations, stands in a different and more limited relation to those obligations. The example shows the obligations of human rights law arising, like other treaty obligations, from the consent of states expressed through ratification, the mechanism examined in the sub-unit on public international law.

The principal instruments of international human rights law therefore form a structure ascending from the Universal Declaration, soft law in origin, to the binding covenants and specialised treaties, and the obligations they create bind states through the same mechanism of ratification that governs treaty obligations generally.

The regional systems

Alongside the universal instruments of the United Nations, international human rights law operates through a number of regional human rights systems, treaty-based regimes established among the states of a particular region to protect human rights within it, often equipped with institutions of greater enforcement strength than the universal mechanisms possess. The principal regional systems have developed in Europe, in the Americas, and in Africa, each resting on a regional treaty and each administered by regional institutions, and they form a significant part of the practical operation of human rights law.

The regional systems connect the subject to the question of enforcement that the module has pursued throughout, for several of them have established courts whose judgments bind the states subject to their jurisdiction, supplying a degree of enforcement that the decentralised international order does not generally provide. A regional human rights court may receive complaints, determine whether a state has breached its obligations under the regional treaty, and issue binding judgments requiring the state to remedy the breach, an institutional strength that gives the regional systems particular practical importance. The relation between the regional and the universal systems is one of complement rather than conflict: the regional systems elaborate and enforce, within their regions, protections that parallel those of the universal instruments, and a person within a region protected by such a system may have recourse to its institutions in addition to the universal mechanisms.

Imagine a person within a state that belongs to a regional system equipped with a human rights court. If the person's rights under the regional treaty are violated and domestic remedies are exhausted, the person may bring the matter before the regional court, which can render a binding judgment against the state. This recourse, available because the state has accepted the jurisdiction of the regional court, illustrates the enhanced enforcement that the regional systems can provide compared with the universal mechanisms, and it shows the practical significance of the regional dimension of human rights law.

The regional human rights systems are therefore an essential part of the structure of international human rights law, supplying, within their regions, institutions of often greater enforcement strength than the universal order provides, and complementing the universal instruments with regional treaties and courts.

Derogation and non-derogable rights

The obligations of human rights law are not in every case absolute, and the law accordingly recognises the concept of derogation, the suspension by a state of certain of its human rights obligations in a time of public emergency that threatens the life of the nation, permitted within strict limits set by the relevant treaty. Derogation allows a state to depart temporarily from specified obligations to the extent strictly required by the exigencies of the situation, subject to conditions of proportionality, notification, and consistency with the state's other international obligations.

The concept of derogation is qualified by an important limit that connects the subject to the peremptory norms examined in the first sub-unit of the module. Certain rights are non-derogable, meaning that no derogation from them is permitted even in the gravest emergency, and these typically include the right to life, the prohibition of torture, the prohibition of slavery, and the prohibition of retroactive criminal punishment. The non-derogable rights overlap substantially with the peremptory norms of general international law, the jus cogens from which no derogation is ever permitted, and this overlap shows the connection between the most fundamental protections of human rights law and the most fundamental norms of the international order as a whole. The structure thus distinguishes the generality of human rights obligations, from which limited and conditional derogation may be permitted in emergency, from a core of fundamental rights that admit of no derogation in any circumstance.

Suppose a state faces a genuine public emergency threatening the life of the nation and, within the limits the relevant treaty permits, suspends certain obligations, such as particular limits on detention, to the extent strictly required. The state may do so as a matter of lawful derogation, provided it observes the conditions the treaty imposes. It may not, however, derogate from the non-derogable rights: it may not employ torture or extrajudicial killing whatever the emergency, for these prohibitions admit of no exception and coincide with the peremptory norms of the international order. The example shows the structure of derogation and its absolute limit, completing the account of how human rights obligations operate.

Derogation and the non-derogable core are therefore the concepts that define the limits of human rights obligations, distinguishing the obligations from which limited departure may be permitted in emergency from the fundamental rights that admit of none, and connecting the most basic protections of human rights law to the peremptory norms that bind the international order absolutely.