Public International Law/Human Rights Law/Recurring Themes in Human Rights Doctrine





Author: Max Milas "Required knowledge: Introduction to Human Rights Law, Sources of international law, Treaty law and interpretation of treaties, Interaction between domestic and international Law" "Learning objectives: to understand what the legal sources of international human rights law are; how international human rights operate; who reviews human rights violations and how"

A. Introduction
International human rights law now affects almost every corner, every living being, and every political entity on this planet. However, how international human rights law doctrinally governs almost every phenomenon on this planet is the subject of this chapter. To this end, the chapter first introduces the positive legal sources of international human rights law, before proceeding to present actors, obligations, dispute resolution mechanisms, implementation and circumvention strategies, and the structure of judicial review of international human rights.

B. Sources of International Human Rights Law
For human rights sources, as for all almost all fields of international law, article 38(1) ICJ Statute is decisive. Accordingly, contemporary international human rights law derives from international treaties, customary international law, general principles of law and non-binding declarations that coexist at both the regional and universal levels. The following section provides an overview of these legal sources of human rights and the legal status of human rights in international law. For this purpose, human rights are presented against the background of the general rules of international law on legal sources and legal status.

I. International Human Rights Treaties
Most contemporary international human rights are codified in treaties. States have labelled human rights treaties with different names, ranging from charter, covenant, convention to protocol. However, this confusing labelling should not obscure the fact that international agreements for the protection of human rights, regardless of their name, constitute treaties under international law according to article 2(1)(a) VCLT if they are concluded between at least two States and contain binding obligations. The most emblematic human rights treaties due to their wide scope and binding force are the 1966 International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) at the universal level and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the 1969 American Convention on Human Rights (ACHR) and the 1981 African Charter on Human and Peoples' Rights (AfCHPR) at the regional level. However, there are also international human rights treaties in the post-Soviet region in the form of the 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and in the Arab region in the form of the 2004 Arab Charter on Human Rights. These general human rights treaties are supplemented by many specialised treaties for the protection of specific population groups, for example, women's rights in the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, migrants' rights in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families , and prohibitions on discrimination in the International Convention on the Elimination of All Forms of Racial Discrimination. Human rights treaties are not static, but are constantly evolving by treaty amendments, additional protocols, or extended interpretations by adjudicative bodies according to article 38(1)(d) ICJ Statute.

II. International Human Rights as Customary International Law
Some human rights are also customary international law and are therefore binding even for States that have not ratified a human rights treaty, provided sufficiently stable State practice and opinio juris (Latin: 'legal opinion') exist. However, contrary to other areas of international law, human rights standards did not originate in customary law, but in international treaties. In the absence of state practice in respecting human rights, human rights treaties had to be created to force states to respect human rights after the experience of two world wars. Nevertheless, more and more human rights are also developing into customary law. They are thus binding on states under both treaty and customary law. Two developments indicate the required state practice and opinio juris for some customary human rights. First, more and more states recognize the legal principles of the UDHR as binding. Second, almost all states have now signed at least one human rights treaty. To identify state practice and opinio juris for specific human rights, reference can be made in particular to the Universal Periodic Review of the Human Rights Council or judgments of the ICJ. Nowadays, at least the prohibition of torture, racial discrimination, and slavery are considered to be customary international law.

III. General Principles of International Law
General principles of international law sometimes clarify the content of international human rights. For example, in the Golder Case, the European Court of Human Rights (ECtHR) held that the right to a fair trial incorporates the general principle that 'a civil claim must be capable of being submitted to a judge'. The ECtHR justifies the use of general principles of international law by reference to the drafting history of the ECHR, the wording of the right to a fair trial in article 6 ECHR, the nature of the ECHR as a lawmaking treaty and article 31(3)(c) VCLT. Similarly, the Inter-American Court of Human Rights (IACtHR) applies general principles of international law in its case law.

IV. International Human Rights as Jus Cogens and Obligations Erga Omnes
The prohibition of torture, racial discrimination, and slavery are recognised not only as customary international law, but also as jus cogens (Latin: 'peremptory norms') norms. Hence, all rules (whether in treaties, custom or principles) that contradict these jus cogens human rights are invalid.

Because all jus cogens norms are also erga omnes (Latin: 'towards all') rules, violations of these three human rights can be invoked by all States before international tribunals.

C. Obligations in International Human Rights Law
Deviating from general international law, international human rights law does not only create obligations between States, but also obligations of States to individuals subject to their jurisdiction.

I. Obligated Actors: States, Non-State Actors and International Organisations
According to the traditional and undisputed understanding, human rights first and foremost bind the State as the primary duty bearer. In exercising its legislative, administrative, or judicial power, the State must comply with human rights obligations arising from treaties and customary law. This also applies to excesses of individual security officers, private persons performing State functions, or subsequent explicit acceptance of acts. While States have wide discretion in implementing obligations under international law in general, human rights obligations are more specific: States must respect, protect, and fulfil human rights.

Certainly, almost all human rights treaties oblige (only) States to respect human rights. However, non-State actors may also have human rights obligations. Some human rights treaties even contain clauses under which individuals have obligations. In this case, human rights obligations of private actors can be derived directly from the treaty text.

For human rights treaties without such a clause, duties of non-State actors can be derived indirectly from the State’s positive obligations to protect: Sometimes the State must restrict the rights of one individual to protect the rights of another individual (so-called duty to protect ). In this case, the human rights obligation continues to bind the State, but the non-State actor’s behavior is nevertheless regulated indirectly by international human rights standards through the State’s obligation to intervene in the relationship between two individuals. In addition, direct human rights obligations of non-State actors are discussed for a variety of cases, if they threaten the human rights of individuals in a State-equivalent manner. This is discussed for terrorists, insurgencies (when they exercise de facto State power in armed conflicts), and large corporations.

International organisations are not bound by human rights according to the text of human rights treaties, although they can be responsible for serious human rights violations and are gaining more and more power. However, international organisations are bound by jus cogens norms and therefore bound by human rights that are jus cogens norms.

II. Protected Actors
Human rights bind the State vis-à-vis all individuals within its territory and under its jurisdiction. Unless human rights are not explicitly limited to nationals, they apply equally to nationals and non-nationals. International human rights treaties do not primarily protect the rights of citizens, but of humans. Human rights protect vulnerable groups in particular, such as asylum seekers, undocumented migrants, disabled people, elderly people, indigenous peoples, and minorities, as well as women, transgender people, and children.

The unborn has no international human rights. According to article 4(1) ACHR, life does not begin with birth, but already with conception. However, this clause has never been successfully invoked on behalf of an unborn and other regional and universal human rights treaties do not contain such a clause. On the contrary, both the ECtHR and the HRC reject rights of the fetus independent of the pregnant person. This approach is consistent with the wording of article 1 UDHR (‘all human beings are born free’). Nowadays, many human rights systems provide a (sometimes limited) right to abortion.

A uniform approach to human rights of corporations, does not exist. While in the European human rights system corporations have standing before the European Court of Human Rights, in the UN and Inter-American systems only individuals have human rights. However, insofar as rights of individuals are protected by a company, individuals can also invoke rights of companies. For the rights of indigenous peoples, on the other hand, most human rights systems provide for distinctive rights.

III. Types of Obligations
Obligated actors must respect human rights by refraining from interference with rights (so-called negative obligations) and by protecting rights through action (so-called positive obligations). Negative obligations require duty-bearers to refrain from unlawfully interfering with human rights. States may therefore only restrict human rights if they can provide a justification for the interference. This requires a restriction that is prescribed by law, serves a legitimate aim, and is necessary in a democratic society. Thereby, negative obligations correspond to the duty to respect human rights.

Duty-bearers cannot, however, fulfil their human rights obligations by mere omission. Instead, they must also respect their positive obligations. Positive obligations oblige duty-bearers to actively protect human rights. States must protect individuals from State, human and natural threats (so-called duty to protect), provide effective access to justice (so-called procedural rights), share information, and enable participation in political and social processes. These duties apply to all State organs and to economic, social, and cultural rights as well as civil and political rights. Thereby, positive obligations correspond to the duties to protect and to fulfil human rights.

D. International Review of Human Rights Obligations
In international human rights law exists is no global forum that monitors human rights as the final authority. Instead, State compliance with human rights is supervised simultaneously by universal and regional courts, committees, and commissions in judicial, quasi-judicial and non-judicial forums. Courts are authorised to exercise judicial review of human rights (e.g., the African Court on Human and Peoples’ Rights (AfCHPR)). In a similar way, quasi-judicial bodies can also rule on individual complaints although they are no courts (e.g., the IACmHR). Non-judicial bodies operate alongside this (quasi-)judicial supervision by documenting and evaluating the general, not complaint-specific human rights situation (e.g., the UN Human Rights Council (UNHRC)).

I. Judicial Review
The most famous supervisors of human rights are certainly the three regional human rights courts in Europe, America, and Africa. The ECtHR, the IACtHR, and the AfCHPR have been influential in shaping human rights development not only in their regional human rights systems, but worldwide. In these forums, individuals can file cases against actions taken by the State (individual complaints) or States against other States (interstate complaints). The ICJ and International Criminal Court (ICC) also interpret human rights in their case law.

II. Quasi-judicial Review
The quasi-judicial human rights commissions and committees complement the judicial supervision of human rights. On the one hand, these institutions are court-like when they decide on human rights violations in individual cases, as the IACmHR, the CCPR, and the Committee against Torture do. The same applied to the European Commission of Human Rights before it was banned in 1998. Thereby, they also contribute to the progressive development of their respective human rights treaties. On the other hand, unlike court decisions, the decisions of these adjudicative bodies are not binding. Moreover, the work of quasi-judicial institutions is not limited to individual or interstate complaints. Instead, the commissions and committees also assess the general human rights situation in States in so-called State reports.

II. Non-judicial Review
In addition to the (quasi-)judicial review of human rights violations, politicised proceedings based on international human rights law are also taking place. The most notorious forum is certainly the UNHRC. The non-judicial bodies are not concerned with developing a coherent interpretation of human rights, but with balancing political interests. These mechanisms are often criticised for their politicisation and infectivity. However, the key advantage of political review of human rights violations is its applicability to all States. Political review is neither spatially nor temporally limited, and can therefore also be applied to States that do not accept the jurisdiction of judicial and quasi-judicial adjudicative bodies. Moreover, it is precisely the process of political negotiation that brings the human rights discourse into previously unattainable areas. In addition to these institutionalised forms of human rights monitoring, there is also a vast field of non-governmental organisations, grassroots movements, and activist litigators that also participate in the interpretation and monitoring of human rights.

E. Domestic Implementation of International Human Rights
The application and interpretation of human rights by various institutions does not result in their effective implementation. To this end, the means of implementation and circumvention are crucial.

I. Means of Implementation: Respect, Protect, Fulfil
States must respect, protect, and fulfil human rights domestically. These obligations to respect, protect and fulfil are linked to positive and negative obligations, which have already been discussed at the beginning of this chapter. In their negative orientation, human rights contain an obligation to respect. Accordingly, States must refrain from actively violating human rights through their organs or agents. However, States are not only required to refrain from human rights violations, but they are also equally obligated to act. In this positive orientation, human rights also contain obligations to protect and to fulfil. According to the obligation to respect, States must protect the people living in their jurisdiction from foreseeable and preventable rights violations by human-made or natural events. This includes obligations to prevent threats to the enjoyment of human rights by executive action or prohibitive legislation. The obligation to respect also includes remedial obligations to assist victims after human rights infringement occurred by providing executive intervention, legislative remedies or judicial precautionary orders. Finally, according to the obligation to fulfil, States must create procedures and institutions that enable greater enjoyment of human rights. This includes supervising State agents, but also providing public services and financial aid. The extent of this obligation depends on the capabilities of the State. The obligations to respect, protect and fulfil determine the general efforts that executive, legislative and judicial branches must undertake to secure the full realisation of human rights. While the three types overlap, they help in evaluating State behavior.

II. Means of Circumvention: Reservations and Withdrawals
In principle, the rules of the VCLT also apply to human rights treaties. The consequence for the implementation of human rights would be that human rights treaties become binding for States upon ratification according to article 14 VCLT, reservations are effective according to articles 19-23 VCLT and States can withdraw from human rights treaties according to articles 54-72 VCLT. However, as the sections on the interpretation of human rights treaties and human rights as customary international law have shown, the provisions of the VCLT do not apply without exceptions.

States can use reservations to modify or exclude provisions in human rights treaties. In an international legal order based on consent, it is only convincing to grant States reservations to treaties. However, due to the interdependence of human rights, this can lead to unpredictability and indeterminacy in human rights law. Nevertheless, except for article 2(1) Second Optional Protocol to the ICCPR and article 57 ECHR, human rights treaties contain no provision for or against reservations. For this reason, the rules of the VCLT apply. According to article 19(c) VCLT reservations are valid if they are compatible with the &quot;object and purpose&quot; of human rights treaties. Therefore, reservations against jus cogens norms, customary international law, non-derogable rights, effective remedies, and mandatory procedures before international adjudicative bodies as well as overly vague or broad reservations are impermissible. In general, an unlawful reservation does not cause the entire acceptance of the human rights treaty to fall.

According to article 56 VCLT, States may only denounce a treaty if it contains a provision regulating its termination or if the parties intended to admit denunciations or if the nature of the treaty implies a right to denunciation. Some human rights treaties contain clauses allowing States to withdraw. For example, article 78 ACHR and article 58 ECHR allow for denunciation. The other three major human rights treaties (ICCPR, ICESCR, and AfCHPR) do not contain withdrawal clauses. The drafters of these treaties deliberately decided against incorporating a withdrawal clause. According to the CCPR, States are therefore precluded from withdrawing from these human rights treaties. Others, pointing to the primacy of State sovereignty and consent, assume that human rights treaties can be denounced despite the non-existence of a withdrawal clause.

F. (Quasi-)Judicial Review of Human Rights Violations
Human rights adjudicative bodies review human rights violations in individual and (more and more frequently lately ) interstate complaints using a two-tiered structure: In a first step, adjudicative bodies examine whether they have jurisdiction to hear the case, answer procedural preliminary questions and usually review whether the complaint is manifestly ill-funded. In a second step, the adjudicative bodies examine the actual human rights violation using a three-step structure consisting of applicability, scope and interference, and justification.

I. Jurisdiction and Admissibility
The judicial bodies do not begin directly with the examination of human rights violations, but first answer procedural preliminary questions. On the one hand, this is based on legal provisions in human rights treaties. On the other hand, the preliminary questions also serve to reduce the workload of the judicial panels.

1. Jurisdiction
Adjudicative bodies can decide on a complaint only if they have jurisdiction. The bodies can answer this first question themselves (so-called compétence de la compétence). Human rights treaties contain precise requirements for jurisdiction. In general, the person whose human rights have been violated must file a complaint (ratione personae) concerning the interpretation of human rights provided in the treaty under discussion (ratione materiae), provided that the facts of the case relate to the jurisdiction of the respondent State (ratione loci) and the human rights violation occurred after the respondent State became a party to the human rights treaty (ratione temporis).

2. Admissibility
However, jurisdiction is not sufficient for the adjudicative bodies to decide the substance of the claim. Instead, complainants must have exhausted domestic remedies, must observe certain time limits between the violation and the filing of the complaint, and must not abuse their right to appeal. In addition, anonymous complaints are not permitted. These requirements reduce the number of cases at a level that can be decided easily and quickly. Furthermore, they generally allow the adjudicative bodies to decide the merits based on facts ascertained by national authorities and courts.

3. Cursory Examination of Merits
Finally, a cursory examination of merits reduces the number of admissible cases. The adjudicative body may dismiss a case as inadmissible if the complaint is manifestly ill-founded, gives no indication of a significant violation, or has already been addressed before the body or another international body.

II. Merits
Under merits, the adjudicative bodies analyse whether a State has violated human rights. This is the focal point of reviewing human rights complaints.

1. Scope and Interference
In a first step, human rights adjudicative bodies examine whether the State's conduct falls within the scope of a human right. Only when the State intrudes into a sphere protected by a human right does the question of justification arise. However, this question cannot be answered in the abstract, but only depending on the concrete human right. Each human right defines its own scope.

2. Justifications
Human rights are not unlimited but depend on other human rights and conflict with public interests. The conflict between two human rights or human rights and public interest can be resolved through limitations and derogations of human rights. However, certain rights cannot be restricted under any circumstances. This applies to all jus cogens human rights.

a) Limitations
Human rights limitations must satisfy a three-step test. Although the specific requirements of the test depend on the human right in question, the basic structure of the test is similar among all human rights. First, the restriction must be prescribed by law. The law must be formulated in an accessible and sufficiently precise manner. Second, the limitation must serve a legitimate aim.

States usually meet the first two requirements. Therefore, the third requirement is decisive. Limitations are only allowed if they are necessary for safeguarding interest that are worthy of protection. Accordingly, (a) the limitation must serve the purpose from the second step, (b) there must be no less intrusive means and (c) the means must be proportionate, i.e. the interest in human rights protection must not outweigh the interest in the limitation. An interference is proportionate if the interest of the individual in exercising her human right does not outweigh the interest of the State in protecting the public interest. Due to the indeterminacy of this balancing, the subsidiarity of international review and the State's greater knowledge of local circumstances, some adjudicative bodies grant States a wide margin of appreciation in this respect.

b) Derogations
In emergencies, States in the European, American, Arabic, and universal human rights systems can not only restrict human rights, but also derogate from them. Derogations are permitted if a state of emergency is declared and exists, the emergency measure is necessary and non-discriminatory, and that no non-derogable rights are violated. The AfCHPR does not contain a derogation clause. Therefore, even in states of emergency, the parties to the AfCHPR can justify infringements on human rights only by relying on the general limitation clause.

c) Economic, Social, and Cultural Rights
Economic, social, and cultural rights (ESC rights) do not oblige the State to refrain from doing something (non-interference with human rights), but to do something (providing resources). Therefore, the test for justifying interferences with these rights differs from other rights. article 2 ICESCR contains the two decisive State obligations for ESC rights: progressive realisation and the prohibition of discrimination. According to the requirement of progressive realisation in article 2(1) ICESCR, States are obliged implement incrementally those rights for which they have sufficient resources. The prohibition of discrimination from article 2(2) ICESCR furthermore requires States to guarantee all rights without discrimination. The regional human rights systems further stipulate these State obligations.

G. Conclusion
This chapter has shown that international human rights law derives from multiple sources of law, bind and obligate different actors in international law, various mechanisms exist to review human rights, and international courts around the world apply a similar scheme to review human rights violations. However, the information presented in this chapter can only serve as an introduction to a thorough discussion of international human rights law. The following chapters show how different universal and regional systems regulate human rights standards by adapting them to global or local specificities. Interested students and teachers of international law can also explore questions about specific human rights using the further readings provided below.

Summary

 * Contemporary international human rights law derives from international treaties, customary international law, general principles of law and non-binding declarations that coexist at both the regional and universal levels.
 * Deviating from general international law, international human rights law does not only create obligations between States, but also obligations of States to individuals subject to their jurisdiction.
 * In international human rights law, there exists no global forum that monitors human rights as the final authority. Instead, State compliance with human rights is supervised simultaneously by universal and regional courts, committees, and commissions in judicial, quasi-judicial and non-judicial forums.
 * Human rights adjudicative bodies review human rights violations in individual and interstate complaints using a two-tiered structure: In a first step, adjudicative bodies examine whether they have jurisdiction to hear the case, answer procedural preliminary questions and usually review whether the complaint is manifestly ill-funded. In a second step, the adjudicative bodies examine the actual human rights violation using a three-step structure consisting of applicability, scope and interference, and justification.

Further Readings

 * Chinkin S, ‘Sources’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
 * Joseph S and Dipnall S, ‘Scope of Application’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
 * Mégret F, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
 * Sivakumaran S, ‘International Humanitarian Law’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
 * Schutter O de, International Human Rights Law: Cases, Materials, Commentary (Third edition, Cambridge University Press 2019)

Further Resources

 * Oxford Human Rights Hub (Blog)
 * LSE Human Rights (Blog)
 * Africa Rights Talk - Centre for Human Rights (Podcast)
 * David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton Univ Press 2005).
 * Mabo, ABC iView (Movie)