IL Facts: Human Rights Law Basics – Treaties and Individuals

“Human rights” is one of the biggest buzz phrases of the 20th century. Developed mostly after the second world war, Human Rights (HR) are those rights which are believed by many, especially in the western world, to be inalienable from human life. Though this idea inherently implies that these rights are naturally bestowed, here we shall only be discussing legal rights which have been granted the status of HR in international law. General Comment 24 on Reservations to the ICCPR notes “human rights norms are the legal expression of the essential rights that every person is entitled to as a human being”.

So, legally, what are human rights?

Human rights are those created and protected by HR treaty law. Treaties that fall under HR law include the Genocide Convention and the International Covenant on Civil and Political Rights (ICCPR). The United Nations (UN) lists seven core HR treaties. The most widely ratified and recognised as universal HR treaties are the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on Rights of the Child and the ICCPR.
It is often asked whether HRs are universal, or inalienable globally under the law. This is almost impossible for legal certainty. This is partially explained by The University of Oxford’s Dapo Akande: “The issue raised here is the well known Baxter paradox (named after the former Harvard Professor and ICJ Judge). Where there is a widely ratified treaty which operates in an area, which practice does one look at in assessing what customary international law in that area is. Does one look at the practice of the parties to the treaty? The problem with this is that presumably the practice of the parties is not supported by opinio juris since that practice follows from the obligations the parties have undertaken under the treaty. Or does one use only the practice of non-parties? The problem is that only a few states would then be creating customary international law.

Are HR treaties qualitatively different from other treaties?

No. Though General Comment 24 from the OHCHR attempts to outline a new legal regime for human rights treaties, particularly regarding reservations, it is a non-binding opinion and is heavily outweighed by other forms of binding law such as state custom, other treaties (primarily the Vienna Convention on the Law of Treaties) and much comment from other respected sources such as states and academia. 
In the United Kingdom’s response to the General Comment, it noted that the approach to reservations laid down in the 1951 Advisory Opinion on Reservations to the Genocide Convention, also a HR treaty, were perfectly sufficient and founded in law to be applied to all HR treaties, without the necessity of a new regime. The UK objected to the Committee’s assertion that HR treaties were “not a web of inter-State exchanges of mutual obligations”, upon which the committee’s comment was founded, noting that at the very least, states create obligations under the Vienna Convention on the Law of Treaties, and further through the system of reporting and mutual accountability under the ICCPR and the jurisdiction of the International Court of Justice. However, despite may state’s objections to the OHCHR attempting to create a new regime, few can deny that the interpretation of valid reservations has been much stricter on the largest HR treaties that previously throughout the treaty system.
However, few have raised explicit objections to the Comment’s assertion that the principle of reciprocity does not apply to reservations to HR treaties. This may prove to be the one unique point.
On the idea that HR treaties are unique in that they create rights for individuals, and not only states, and are therefore qualitatively distinct from other treaties, this is false. Some other treaties also create rights for individuals, examples including the Vienna Conventions on Diplomatic and Consular Relations, the Draft Articles on Diplomatic Protection, and many bilateral and smaller multilateral treaties on such subjects as the treatment of aliens, and even trade treaties exempting individuals and small business from tax and tariffs. Even the Charter of the United Nations infers some rights for individuals in the Chapter I. 

Remedies for Victims

Victims have four main routes to seek recourse for violations of their rights under international law: use of diplomatic protection, international organisations, individual claims through the UN treaty system and civil actions.
Diplomatic Protection
This route is explained as a general recourse in a previous post. There are a few drawbacks to diplomatic protection specific to use by victims of human rights infringement though. As mentioned in the previous post, this route can be problematic for holders of dual nationality. Additionally, due to the nature of Diplomatic Protection, the property of the complaint shifts from the victim to the pursuing state. This means several things: firstly, that the agency of the victim is reduced leaving less complete closure. Secondly, that any compensatory measures including monetary compensation are also the property of the pursuant state, which may or may not pass this on, in whole or in part, to the initial victim. This again leave the closure of the victim at risk, although some states have national legislation to ensure that any awards are passed on. Thirdly and finally, state compliance with the court’s judgement is not particularly easy to pursue in its own right. Having said this, in some cases Diplomatic Protection may be the only plausible route, where the rights violated are of an erga omnes nature and otherwise slippery, or depending on the legal obligations of the states involved.

International Organisations
International organisations offer a less traditional recourse aimed at societal change, pressure and accountability. The main body here is the Human Rights Council, a subsidiary of the UN General Assembly. Through the system of regular reviews, targeted scrutiny, collective democratic pressure and GA authority, the HRC looks at individual cases and widespread and systematic abuses and helps past and potential victims gain hope and closure. However, Asian and African states have often grouped together in voting blocs to prevent harsher scrutiny and specific public assessments based on trade alliances, cultural relativity claims and other forms of political blackmail and manoeuvring.

Individual Claims
Individuals can submit complaints under the ICCPR, Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention against Torture and other Cruel or Degrading Treatment (CAT) (Bayefsky, How to Complain to the United Nations Human Rights Treaty System, (2002), p38). Each of these treaties established a procedure under either an optional protocol or optional declaration under and article of the treaty. Complainants can submit communications or petitions. Admissibility is dependent on:
The complaint must be from an individual or appropriate group, and must be submitted by a person who is personally effected by the violation.
-identification of the victim
Complaints cannot be anonymous
-exhaustion of local remedies
-sole jurisdiction
The same complaint must not be sitting before another international forum, and the complainant must have been subject to the jurisdiction of the alleged violating state party at the time of alleged violation.
-substantiation of the claim
Adequate substantiating evidence must be provided
-compatibility with the provisions of the treaty
-reasonable timeliness
Any delays in submitting the complaint must be explained

Civil Action
[The Diplomat hates to keep you in suspense, but civil actions against states and individuals for HR abuses will be converted in a later post]

So for all the buzz and furore around human rights over the last few decades, it is very possible that they are no more than further bargaining tools in international treaty negotiation. While The Stateless Diplomat has faith that the trickle of rights and power reaching individuals from the international legal system may wear away the old stone to become a waterfall, the stubbornness of time and politics are still battled on the route to dignity and peace. The law can only deepen the cracks, it is not a pry bar.


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