Impact
Here we assess the significant role and growing impact of human rights on the development of international law.
Antonio Cassese affirms that human rights doctrines have helped “shift the world community from a reciprocity-based bundle of legal relations, geared to the ‘private’ pursuit of self-interest, and ultimately blind to collective needs, to a community hinging on a core of fundamental values, strengthened by the emergence of community obligations and community rights and the gradual shaping of public interests.”
Below we will look at five examples of human rights tools, beginning with the Universal Declaration of Human Rights.
1. The Universal Declaration of Human Rights
Introduced in 1948 by a UN General Assembly Resolution, with the aim of exerting a moral and political influence on states, the Universal Declaration of Human Rights (UDHR) is one of the best known and most widely cited human rights documents in the world.
The declaration itself is not a legally binding document, but takes the form of a recommendation by the United Nations General Assembly to member states.
This lack of legal status, however, has not prevented its significant influence in formulating legislation at a domestic and international level. Indeed the General Assembly refers to its desire to encourage “the progressive development of international law and its codification” in article 13 of the UDHR.
In terms of its influence, its principles are enshrined in and are the inspiration of the constitutions and national legislation of many newly independent states, which often seek to embody the spirit of democracy which is promoted by the UDHR (see for example article 21 of the Universal Declaration of Human Rights).
At a regional level, references to the declaration have been made in the charters and resolutions of regional intergovernmental organizations as well as in treaties and resolutions adopted by the United Nations system. The UDHR is said, by the United Nations High Commission for Human Rights, to have inspired more than 60 human rights instruments, which together comprise an international standard of human rights.
Among these instruments are the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both of which refer to the UDHR explicitly in their preambles. Both the ICESCR and the ICCPR are legally binding treaties and, with the UDHR, form the International Bill of Rights. To illustrate the impact of the UDHR on these treaties, just compare some of the articles, for example article 19 of the UDHR and article 19 of the ICCPR, both of which talk about freedom of opinion and information.
As the United Nations human rights system undergoes constant evolution and development, so too the principles embodied in its treaties continually give rise to new instruments, which again carry the original influence of the UDHR. Examples include the Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination.
This latter convention, in a reflection of article 7 of the UDHR, declares dissemination of ideas based on racial superiority or hatred as being punishable by law. An example of this in practice is the sentencing by the International Criminal Tribunal for Rwanda in June 2000 of former radio presenter Georges Omar Ruggiu after he pleaded guilty to inciting genocide.
The incorporation of the principles of the UNDHR into domestic legislation is one argument used to show that the declaration has now become part of the body of customary law. Other examples of opinio juris include references in UN resolutions and declarations to the duty of states to observe the UDHR and decisions in national courts that refer to the UDHR as a source of standards for judicial decision.
2. The International Covenant on Civil and Political Rights
Adopted and opened for signature, ratification and accession by a General Assembly resolution in 1966, the International Covenant on Civil and Political Rights (ICCPR) entered into force 10 years later in 1976.
The ICCPR is a legally binding treaty. This means that states which ratify the treaty are legally bound by it, while states that do not are neither bound by the treaty obligations or entitled to invoke those obligations against other state parties.
Comprehensive implementation measures, which themselves contain legal obligations, are contained in the second article which includes the adoption of “legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant” (paragraph 2 of article 2, ICCPR).
Role of human rights in international law
Where GA resolutions seek to declare the law without using the treaty process, it is argued that they are not recommendatory in nature, but are seeking to create universal legal norms. However, the GA’s role in this regard appears to have been accepted from the start. Schachter cites examples of this including the unanimous 1946 resolution declaring genocide a crime under international law. In addition to this, the GA has categorised conduct as illegal under the UN Charter, for example in the case of the resolution condemning South Africa for apartheid.
It is difficult to argue against such resolutions when they are unanimous and therefore represent the opinion of every state carrying the weight of opinio juris communis. In this sense GA resolutions step into the territory of formulating customary international law, where the belief of the state parties carries more weight than the fact that those beliefs were expressed in the UN General Assembly. However, this still gives rise to the necessity to validate state practice in these cases if they are truly to be considered as part of the body of international customary law.
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The rules forbidding slavery, genocide and racial discrimination
The rules forbidding slavery, genocide and racial discrimination are human rights which are recognised as being universally mandatory. Such rights fall under the category of international customary law and bind all states whether they have ratified human rights conventions or not.
These customary international laws come into being as a result of a) consistent state practice combined with b) opinio juris, which is the state’s positive sense of legal obligation with regard to the rule.
Rules of this nature include those banning:
Grave, repeated and systematic violations of human rights
Slavery
Genocide
Systematic racial discrimination
Torture and other cruel, inhuman and degrading treatment
Murder and disappearance
Prolonged arbitrary detention
The list of customary international human rights laws is continually developing. More recent additions which have evolved as a result of state practice and opinio juris include the right to self-determination of peoples, the individual right to leave and return to one’s country and the principle of non-refoulement of refugees.
Some of these rights, including those prohibiting slavery, genocide and racial discrimination, are non-derogable, i.e. a state of public emergency does not allow these rights to be eroded in the name of the protection of the State. Examples of such rights are outlined by article 4 of the ICCPR.
Rights from which no deviation is allowed have the status of Jus Cogens or a peremptory norm, which is an elevated status of right above that of a customary law. Article 53 of the Vienna Conventions on the Law of Treaties states: “.. a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
The International Court of Justice has the responsibility of judicially determining peremptory norms.
A topical example of a peremptory norm is the right not to be tortured. In the wake of the September 11th attacks on the USA, George Bush ventured that torture should be allowed when interrogating terrorist suspects and was therefore a derogable right.
The United Nations High Commission for Human Rights in Geneva acted swiftly to counteract such claims by issuing a statement which affirmed that article 4 of the ICCPR “… lists provisions that may not be derogated from even in times of public emergency. These are: article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment …) …”.
The statement continues, “Article 2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Finally: “…action against terrorism should not be used as a pretext to infringe human rights…justice, the rule of law, and respect for human rights must guide all responses” (OHCHR, Human Rights and Terrorism, 11 October 2001).
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5. A Decision of the European Court of Human Rights
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHR) entered into force in 1953. According to Steiner and Alston, it remains the most judicially developed of all the human rights systems and has generated a more extensive body of jurisprudence than any other part of the international system.
The European Court of Human Rights in Strasbourg was the first international court to be established to determine human rights matters. There are two key ways in which judgements by the European Court create an impact. Firstly with relation to judgements on the state which if found guilty will lead to state obligations, including the possible amendment of domestic legislation. Secondly in terms of the advancement of the law of the European Convention and the body of international law as a whole.
Internationally, the court’s jurisprudence has been influential in developing international human rights norms. For example, both the Inter-American Court (the only other international body fulfilling a comparable role to the European Court) and the Human Rights Committee have frequently referred to judgements of the court in their own workings.
One of the most significant ways in which judgements affect trends at a regional and international level is in the ECHR’s revision of previous judgements and the resulting evolution of case law according to new precedents. An example of this, the judgement delivered in Selmouni vs France in 1999, is cited by Cassese in International Law. In this case, the court decided that the judgements of serious ill treatment of persons detained in police custody from previous cases, as inhuman or degrading treatment were now to be termed torture. As such they represented a much more serious breach of article 3 of the European Convention of Human Rights.
The court took this view in light of “the increasingly high standard being required in the area of the protection of human rights …and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”
Alternatively, a finding by the Court of a violation has often led the respondent State to take general measures to comply with the decision in question and the higher domestic courts to adapt their case-law.
Bibliography
Ineke Boerefijn, Towards a Strong System of Supervision: The Human Rights Committee’s Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights, Human Rights Quarterly 17.4 (1995) 766-793
Antonio Cassese, International Law
European Convention for the Protection of Human Rights and Fundamental Freedoms
European Court of Human Rights
Office of the UN High Commissioner for Human Rights – Human Rights and Terrorism
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
Steiner and Alston, International Human Rights in Context
Universal Declaration of Human Rights
Impact of International Human Rights Law on National SOGI Rights
Perspectives Impact of International Human Rights Law on National SOGI Rights
International human rights law (IHRL) creates a set of legal responsibilities for states in their treatment of individuals within their state boundaries. States, however, voluntarily agree to these limitations on their sovereignty in order to uphold these globally held ideals. The main sources of IHRL are:
treaties, which are legally binding agreements between states;
customary law, which includes consistent conduct of states due to the belief that the conduct is legally required;
general principles of law which are found in most state domestic legal systems; and
decisions made by judicial bodies. IHRL serves as the way in which individuals and states can ensure that certain fundamental rights are respected and upheld by state governments.
International human rights law (IHRL) has played an important role in cementing and upholding sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) rights found in national level domestic law. A number of domestic courts have used international human rights instruments when deciding cases that directly impact the status of SOGIESC within the national framework. The most commonly used instruments include the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. Even though explicit reference to SOGIESC is not found within these documents, courts have understood their implicit protection through various interpretations of the specific instruments Articles.
International Human Rights law has proved to be a vital source of protection for SOGIESC rights within national case law. Even though the use of international law within domestic jurisprudence remains fairly limited, the increasing frequency of such use and finding of SOGIESC protections within already established IHRL supports the importance of continued advocacy for SOGIESC rights in IHRL. With continued support from both the public and private spheres for SOGIESC protections within IHRL, domestic caselaw is sure to continue to transform to include such protections and the use of international law within domestic court findings.
Examples of successful usage of IHRL in country level cases include:
In Trinity Western University et Al. v. Law Society of Upper Canada, the Court of Appeals for Ontario explicitly used IHRL to uphold the denial of accreditation for Trinity Western’s Law School. In this case, Trinity Western, and evangelical christian private university, proposed to establish a law school where it required students to sign and adhere to an agreement that prohibited sexual intimacy except when it came to heterosexual married couples. The applicants in the case included a Trinity Western graduate who argued that the denial of accreditation infringed on his freedom of religion under the Canadian Charter. The Court, however, used IHRL to explain how freedom of religion does come with certain limitations. Specifically, the court found that the Law Society was reasonable in its decision to deny accreditation in that freedom of religion was subject to the limitation of upholding the fundamental rights and freedoms of others. The court found that the agreement used by Trinity Western discriminated against LGBTQ persons as it required them to renounce their dignity and self-respect in order to obtain a legal degree.
In Leung TC William Roy v. Secretary for Justice, a Hong Kong domestic decision, a 20-year-old gayman brought a case against the national government arguing against provisions within Hong Kong’s criminal law. The provisions prohibited sexual intercourse for gay males until the age of 21 and went as far to completely prohibit certain public displays of affection between gay men, such as touching and kissing, regardless of age. In striking down the provisions of the criminal law, the court found that those specific sections relating to physical expressions of sexual orientation explicitly violate Hong Kong’s Basic Law. Specifically, the court found that Article 25 of the Basic Law provides all Hong Kong residents equality before the law and Article 39 gives recognition to international treaties that do so as well. The court explicitly used the ICCPR as it explained how it was incorporated into domestic law through the Hong Kong Bill of Rights and further elaborates that the treaty body for the ICCPR, in Toonen v. Australia, held that reference to the word ‘sex’ in the ICCPR included sexual orientation. Therefore, the court rooted its argument for striking down the provisions of the criminal law through the equal rights provision of its Basic Law as well as the incorporation of the ICCPR within its domestic law which provided for protections for sexual orientation.
Another important domestic case for SOGIESC rights that used IHRL is found in the National Legal Services Authority v. Union of India and others case. In this case, members of the transgender community within India sought recognition of their gender identity and not simply recognition of the sex assigned to them, male or female, at birth. Specifically, the community argued that the non-recognition of their gender identity violated Article 14 and 21 of the Constitution of India which provided them the right of equality before the law and the fundamental right to liberty. The Supreme Court of India through this case declared transgender people to be a third gender and gave them the legal right to self-identify their gender as male, female, or third gender. In reaching this conclusion, the court delved deeply into international law by analyzing different UN body interpretations on gender identity and sexual orientation including the Universal Declaration of Human Rights, the ICCPR, and the Yogyakarta Principle.
Published on April 12, 2017 | OutRight Action International an LGBT human rights organization
