The phrase “human rights” may be used in an abstract and philosophical sense, either as denoting a special category of moral claim that all humans may invoke or, more pragmatically, as the manifestation of these claims in positive law, for example, as constitutional guarantees to hold Governments accountable under national legal processes. While the first understanding of the phrase may be referred to as “human rights”, the second is described herein as “human rights law”.
While the origin of “human rights” lies in the nature of the human being itself, as articulated in all the world’s major religions and moral philosophy, “human rights law” is a more recent phenomenon that is closely associated with the rise of the liberal democratic State. In such States, majoritarianism legitimizes legislation and the increasingly bureaucratized functioning of the executive. However, majorities sometimes may have little regard for “numerical” minorities, such as sentenced criminals, linguistic or religious groups, non-nationals, indigenous peoples and the socially stigmatized. It therefore becomes necessary to guarantee the existence and rights of numerical minorities, the vulnerable and the powerless. This is done by agreeing on the rules governing society in the form of a constitutionally entrenched and justiciable bill of rights containing basic human rights for all. Through this bill of rights, “human rights law” is created, becoming integral to the legal system and superior to ordinary law and executive action.
In this article, some aspects of the history of human rights law at the global, regional and subregional levels are traced. The focus falls on the recent, rather than the more remote, past. To start with, some observations are made about the “three generations” of human rights law.
Three generations of international human rights law
Human rights activism can be described as a struggle to ensure that the gap between human rights and human rights law is narrowed down in order to ensure the full legal recognition and actual realization of human rights. History shows that governments do not generally grant rights willingly but that rights gains are only secured through a successful challenge to absolutist authority. Following on the Magna Carta, which set limits on the powers of royal Government in thirteenth century England, the 1776 American Declaration of Independence and the 1789 French Declaration des droits de l’Homme et de du citoyen (Declaration of the Rights of Man and Citizen) were landmarks of how revolutionary visions could be transformed into national law and made into justiciable guarantees against future abuse.
The traditional categorization of three generations of human rights, used in both national and international human rights discourse, traces the chronological evolution of human rights as an echo to the cry of the French revolution: Liberté (freedoms, “civil and political” or “first generation” rights), Egalité (equality, “socio-economic” or “second generation” rights), and Fraternité (solidarity, “collective” or “third generation” rights). In the eighteenth and nineteenth centuries, the struggle for rights focused on the liberation from authoritarian oppression and the corresponding rights of free speech, association and religion and the right to vote. With the changed view of the State role in an industrializing world, and against the background of growing inequalities, the importance of socio-economic rights became more clearly articulated. With growing globalization and a heightened awareness of overlapping global concerns, especially due to extreme poverty in some parts of the world, “third generation” rights, such as the rights to a healthy environment, to self-determination and to development, have been adopted.
During the period of the cold war, “first generation” rights were prioritized in Western democracies, while second generation rights were resisted as socialist notions. In the developing world, economic growth and development were often regarded as goals able to trump “civil and political” rights. The discrepancy between the two sets of rights was also emphasized: “civil and political” rights were said to be of immediate application, while “second generation” rights were understood to be implemented only in the long term or progressively. Another axis of division was the supposed notion that “first generation” rights place negative obligations on States while “second generation” rights place positive obligations on States. After the fall of the Berlin Wall, it became generally accepted that such a dichotomy does not do justice to the extent to which these rights are interrelated and interdependent. The dichotomy of positive/negative obligations no longer holds water. It seems much more useful to regard all rights as interdependent and indivisible, and as potentially entailing a variety of obligations on the State. These obligations may be categorized as the duty to respect, protect, promote and fulfil.
Global level
For many centuries, there was no international human rights law regime in place. In fact, international law supported and colluded in many of the worst human rights atrocities, including the Atlantic Slave Trade and colonialism. It was only in the nineteenth century that the international community adopted a treaty abolishing slavery. The first international legal standards were adopted under the auspices of the International Labour Organization (ILO), which was founded in 1919 as part of the Peace Treaty of Versailles. ILO is meant to protect the rights of workers in an ever-industrializing world.
After the First World War, tentative attempts were made to establish a human rights system under the League of Nations. For example, a Minority Committee was established to hear complaints from minorities, and a Mandates Commission was put in place to deal with individual petitions of persons living in mandate territories. However, these attempts had not been very successful and came to an abrupt end when the Second World War erupted. It took the trauma of that war, and in particular Hitler’s crude racially-motivated atrocities in the name of national socialism, to cement international consensus in the form of the United Nations as a bulwark against war and for the preservation of peace.
The core system of human rights promotion and protection under the United Nations has a dual basis: the UN Charter, adopted in 1945, and a network of treaties subsequently adopted by UN members. The Charter-based system applies to all 192 UN Member States, while only those States that have ratified or acceded to particular treaties are bound to observe that part of the treaty-based (or conventional) system to which they have explicitly agreed.
Charter-based system
This system evolved under the UN Economic and Social Council, which set up the Commission on Human Rights, as mandated by article 68 of the UN Charter. The Commission did not consist of independent experts, but was made up of 54 governmental representatives elected by the Council, irrespective of the human rights record of the States concerned. As a consequence, States earmarked as some of the worst human rights violators served as members of the Commission. The main accomplishment of the Commission was the elaboration and near-universal acceptance of the three major international human rights instruments: the Universal Declaration of Human Rights, adopted in 1948, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the latter two adopted in 1966. As the adoption of those two separate documents indicates, the initial idea of transforming the Universal Declaration into a single binding instrument was not accomplished, mainly due to a lack of agreement about the justiciability of socio-economic rights. As a result, individual complaints could be lodged, alleging violations by certain States of ICCPR, but not so with ICESCR.
The normative basis of the UN Charter system is the Universal Declaration of Human Rights, adopted on 10 December 1948, which has given authoritative content to the vague reference to human rights in the UN Charter. Although it was adopted as a mere declaration, without a binding force, it has subsequently come to be recognized as a universal yardstick of State conduct. Many of its provisions have acquired the status of customary international law.
Faced with allegations of human rights violations, particularly in apartheid South Africa, the Commission had to devise a system for the consideration of complaints. Two mechanisms emerged, the “1235” and “1503” procedures, adopted in 1959 and 1970, respectively, each named after the Economic and Social Council resolution establishing them. Both mechanisms dealt only with situations of gross human rights violations. The difference was that the “1235” procedure entailed a public discussion while “1503” remained confidential. In order to fill the gap in effective implementation of human rights, a number of special procedures were established by the Commission. Unique procedures take the form of special rapporteurs, independent experts or working groups looking at a particular country (country-specific mandate) or focusing on a thematic issue (thematic mandate).
Leapfrogging a few decades to 2005, in his report In Larger Freedom: Towards Development, Security and Human Rights for All, the former UN Secretary-General, Kofi Annan, called for the replacement of the Commission by a smaller, permanent and human rights-compliant Council, able to fill the credibility gap left by States that used their Commission membership “to protect themselves against criticism and to criticize others”.1 The major reason for replacing the Commission was the very selective way in which it exercised its country-specific mandate, due mainly to the political bias of representatives and the ability of more powerful countries to deflect the attention away from themselves and those enjoying their support. In 2006, the General Assembly decided to follow the Secretary-General’s recommendation, creating the Human Rights Council as a replacement to the Commission on Human Rights.2
There are some important differences between the former Commission on Human Rights and the current Human Rights Council. As a subsidiary organ of the General Assembly, the Council enjoys an elevated status compared to the Commission, which was a functional body of the Economic and Social Council. It has a slightly smaller membership (47 States) and its members are elected by an absolute majority of the Assembly (97 States). To avoid prolonged dominance by a few States, members may be elected only for two consecutive three-year terms. The Council serves as a standing or permanent body, which meets regularly, not only for annual “politically charged six-week sessions” as the Commission did. Following the more human rights-sensitive selection criteria, the list of States elected by the Assembly contrasts with countries which, in 2006, served on the Commission. The Assembly may, by a two-thirds majority vote, suspend a member that engages in gross and systematic human rights violations.
The Human Rights Council retained most of the special procedures, including the confidential “1503” (now called the “compliant procedure”), and introduced the Universal Peer Review (UPR). Starting in April 2008, one third of UN Member States has undergone this process. The UPR sUPR hows similarities with the African Peer Review Mechanism which has been set up under the New Partnership for Africa’s Development (NEPAD). Apart from the Universal Declaration on Human Rights, the General Assembly adopted numerous other declarations. When sufficient consensus emerges between States, declarations may be transformed into binding agreements. It is revealing that the required level of agreement is lacking on crucial issues, such as the protection of non-hegemonic citizenship. The two relevant declarations—the Declaration on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, adopted in 1992, and the Declaration on the Rights of Indigenous Peoples, adopted in 2007, have not been translated into binding instruments. The same is true of the Declaration on the Right to Development, which was adopted in 1986.
