2013 CISV Year of Human Rights
Background Reading
The Protection of Human Rights:
main documents and means for enforcement
by Jonas Lillemoen Skaalerud
Declarations and covenants, conventions and treaties. You may have seen some of these words
before. Maybe you have heard about the ‘Convention on the Rights of the Child’ or the ‘Convention
against Torture’. But what exactly are they? And what impact do they have?
This article gives an overview over key
documents and institutions that govern the
field of Human Rights today. Since the
adoption of the UN Universal Declaration of
Human Rights in 1948, a growing catalogue of
human rights documents has followed. An
global human rights system anchored within
the United Nations has come to existence - in
fact, for a lot of people the UN might be the
first thing that comes to mind when they think
of the subject. As a consequence, an emphasis
will here be put on the UN’s work on human
rights. However, parallel to the development
of an international human rights regime, there
has also been an emergence of regional
institutions which we will explore as well. But,
before we turn to the institutions and
documents themselves we will take a brief look
at public international law which in many ways
creates the framework for both the
international and regional regimes for the
protection of human rights.
Public International Law
The international human rights law is part of
public international law which regulates
relations between states on a great number of
areas. In addition to human rights, public
international law also covers inter-state
relations with regard to transport, fishing and
environmental protection to name a few. Also,
public international law builds on certain
principles, most important here being the
principle of state sovereignty - the state has the
supreme independent authority over its
territory. The sovereignty of a state can
however be restricted. This happens when a
state enters formal agreements with other
states, such as the international conventions on
human rights (Høstmælingen 2012:27)1.
States normally become legally bound by
international human rights agreements only
when they have ratified them. Signing a
document signals the recognition of and
positivity towards the agreement, but is not
legally binding. Ratifying means more than
signing and in most cases it implies that the
agreement has to be approved on the statelevel by for example a national parliament.
The process of ratification also normally
includes checking out how the regulations can
be incorporated in national law and taking the
1
The article relies heavily on Njål Høstmælingen’s great
book ‘Internasjonale menneskerettigheter’
(International Human Rights) 2nd edition from 2012.
Other sources will be cited in the text.
1
2013 CISV Year of Human Rights
Background Reading
necessary measures so that it complies with the
international agreement. In addition to the
process of ratification, states also become
legally bound by agreements when they are
regarded as customary law.
Most public international law regulates the
relations between states. The international
human rights law differs in this regard as it
deals with the relationship between individuals
on the one hand, and the state on the other.
More precisely, a state entering a legally
binding human rights agreement commits to
giving individuals certain rights and to treat or
protect them in a certain way.
Now, let us turn to the main international
institutions and documents that work for the
protection of human rights.
The United Nations and Human
Rights
Human Rights Documents
The foundational Charter of the United
Nations
Even before the UN officially came into
existence (October 24th 1945) the
organisation’s focus on ‘human rights and
fundamental freedoms’ were evident in the
making of the foundational Charter of the UN.
During the spring of 1945, several states met in
San Francisco to establish a new international
order. The violations both before and during
the Second World War had led to an
acknowledgement of the need for an
international arena for cooperation and
coordination between the sovereign states of
the world.
Article 1.3 in the UN Charter states that
among the purposes of the United Nations
are:
The Protection Of Human Rights
‘(…) to achieve international cooperation in solving international problems of
an economic, social, cultural, or humanitarian
character, and in promoting and encouraging
respect for human rights and for fundamental
freedoms for all without distinction as to race,
sex, language, or religion’. (Charter of the
United Nations).
There are other references to human rights in
the Charter, but the one above is probably the
most explicit (ibid: 40). This significant written
focus on human rights was later followed up
with the creation of councils and committees
responsible for working to enforce these goals.
We will look into these institutions later, but
first we turn to the United Nations’ Universal
Declaration of Human Rights.
The Universal Declaration of Human Rights
(UDHR)
Although the charter certainly included a
strong focus on human rights, it did not
succeed in creating a common understanding
or definition of the term. To continue this
work a UN Commission on Human Rights
was created which during its first years was led
by Eleanor Roosevelt. The commission was
supposed to come up with a legally binding
text that everyone could agree on. The task
proved to be a rather big one and the
difficulties resulted in a two-track process
where they would start with a general, not
legally binding text, and then use this as a
starting point for a more specific and legally
binding solution.
On December 10th, 1948, the commission’s
proposed ‘Declaration of Human Rights’ was
adopted by the UN General Assembly which
at the time included 56 member states, of
which 48 voted for and the remaining 8
abstained.
2
2013 CISV Year of Human Rights
Background Reading
The declaration contains an introduction,
called a ‘pre-amble’, and thirty articles. Each
article translates to a certain right or group of
rights which by René Cassin, member of the
Commission on Human Rights, has been
presented like this:
Article 28-30
The realization of human rights
Article 2-11
Article 12-17
Article 18-21
Article 22-27
Personal rights
Civil rights
Political rights
Economic, social,
cultural rights
Pre-amble and Article 1
Equality in dignity and rights for all
The model here is a simplified version
(Høstmælingen has a slightly more detailed
version of the model, see 2012: 46).
René Cassin compares the declaration with a
house. In his view, the Pre-amble and Article 1
lays the foundation with its principles of the
equality in dignity and rights for all. Then we
have four pillars; personal rights, civil rights,
political rights and economic, social and
cultural rights. As a roof, protecting the house,
we have article 28, 29 and 30 stating the
necessary conditions for the realization of
human rights.
The significance of the declaration is heavily
debated. Some argue that it is a weak and
vague document that does not demand enough
action and change. Others argue that it is the
most important human rights document that
exists, and that its influence is and has been
considerable. Darren O’Byrne writes for
example that:
The Protection Of Human Rights
‘…it would not be too bold a claim to
suggest that the 1948 Declaration (…) was one
of the most significant achievements of the
twentieth century simply because it allowed for
the implementation of these hitherto abstract
ideals into concrete, enforeceable law.’
(O’Byrne 2003:72).
The Two Covenants
As noted above there was a two-track process
in the initial work of the commission on
human rights. With the first track being the
creation of the Universal Declaration of
Human Rights, the two covenants represent
the second track in the making of what is often
called the ‘International Bill of Human Rights’.
The original idea was to create one covenant
which would concreticize the content of the
declaration and make it legally binding, or as
Høstmælingen writes, to ‘operationalize’ the
rights in the declaration. Several elements
made this difficult and the solution was to be
two separate covenants; one on Civil and
3
2013 CISV Year of Human Rights
Background Reading
Political Rights, and the other on Economic,
Social and Cultural Rights.
UN Conventions on Human Rights
Furthermore it took almost twenty years from
the adoption of the declaration until the
General Assembly adopted the two covenants
in 1966.
In general, the covenants specify the rights set
forth in the declaration and establish the
grounds for enforcing them. Both covenants
state for example that the rights apply to all
individuals within the jurisdictional borders of
any state that has ratified the agreements.
Together with the two covenants, seven human
rights conventions make up the core of the
UN instruments for the protection of human
rights. As legal documents, the conventions are
equal to the covenants; a state becomes legally
bound by a convention after ratification. But
where the covenants, although more specific
than the declaration, still are rather general,
the conventions protects specific fields of
human rights.
The Covenant on Civil and Political Rights
differs from the related rights in the
declaration in that it does not include the right
to property, nationality or to seek asylum. On
the other hand it does also include some
rights that are not to be found in the
declaration, especially in the field of minority
rights.
The seven conventions are:
- Convention on the Elimination of All
-
The Covenant on Economic, Social and
Cultural Rights to a larger degree repeats the
related rights from the declaration such as for
example the conditions of labour, social
security, family, standard of life, education,
culture and science. Worth mentioning is also
the fact that it is seen to be less strict in terms
of implementation than the Covenant on Civil
and Political Rights. Article 2 for example
enables a step-by-step incorporation of rights.
-
To summarise, the bottom line is that the
language of both covenants are more detailed
than that of the declaration and that they take
the rights of the declaration a step further in
making them legally binding for the states that
ratify them. Also, the two covenants internally
differ in terms of rules for implementation,
with the Covenant on Economic, Social and
Cultural Rights being seen as less rigid than the
other.
The Protection Of Human Rights
Forms of Racial Discrimination
(1965)
Convention on the Elimination of All
Forms of Discriminations against
Women (1979)
Convention against Torture and
Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984)
Convention on the Rights of the
Child (1989)
Covention on the Protection of the
Rights of All Migrant Workers and
Members of Their Families (1990)
Convention for the Protection of All
Persons from Enforced
Disappearance (2006)
Convention on the Rights of Persons
with Disabilities (2006)
We have now introduced some key human
rights documents. Our starting point was the
creation of the United Nations and the
inclusion of the idea of international human
rights in its ‘Charter’ from 1945. Then we
turned to the ‘Universal Declaration of
Human Rights’ which was adopted in 1948.
The initial work on human rights also included
the creation of two international covenants on
human rights which, though it took some time,
was finally adopted in 1966. Since 1965 a
4
2013 CISV Year of Human Rights
Background Reading
number of ‘conventions’ on human rights has
been added as well.
As you may have noticed, the evolution of
human rights within the UN as described in
the section above, is very much an evolution
from the ‘general’ to the ‘specific’. From the
notion of international human rights in the
charter and declaration to the legally binding
covenants and conventions.
From vague ideas on the importance of human
rights to specific, enforceable, rights. But, how
does this enforcement take place? What
mechanism exists for the protection of these
international agreements?
Protecting International Human
Rights
The Office of the High Commissioner for
Human Rights is the ‘principle’ human rights
official of the United Nations. The office is
located in Geneva and is part of the UN
Secretariat. The high commissioner is ranked
as a form for ‘Under Secretary-General’ of the
UN and the office’s mandate includes
councelling and monitoring on human rights
issues as well as filling the role of an
international ombudsman and leader of work
on human rights in the UN.
The remaining UN methods of
implementation of the human rights
agreements are divided in two main categories.
First we have what is called the charter-based
instruments. Most important is the Human
Rights Council, which in 2006 replaced the
previous Commission on Human Rights. The
Human Rights Council is:
‘an inter-governmental body within the
United Nations system responsible for
strengthening the promotion and protection of
human rights around the globe and for
addressing situations of human rights violations
The Protection Of Human Rights
and make recommendations on them. It has
the ability to discuss all thematic human rights
issues and situations that require its attention
throughout the year. It meets at the UN Office
at Geneva’
(http://www.ohchr.org/EN/HRBodies/
HRC/Pages/AboutCouncil.aspx)
Second, we have the treaty or conventionbased instruments. In addition to the
protection of rights, writes Høstmælingen, the
UN conventions creates mechanisms for the
implementation and enforcement of them.
This is mainly done through various
committees which, based on the conventions,
work to make sure that states follow up on
their commitments.
An example of such a committee is the
Committee on the Elimination of Racial
Discrimination (CERD). The grounds for the
creation of the committee is to be found in the
Convention on the Elimination of All Forms
of Racial Discrimination Article 8. The
committee has 18 members, so-called
independant experts, selected by the states
bound by the convention.
The committee base their work on mainly
three mechanisms; state-reports, inter-state
complaints and individual complaints.
‘All state parties are obliged to submit
regular reports to the Committee on how the
rights are being implemented. States must
report initially one year after acceding to the
Convention and then every two years. The
Committee examines each report and
addresses its concerns and recommendations
to the State party in the form of “concluding
observations”’
(http://www2.ohchr.org/english/bodies/cerd/)
Other convention-based committees, such as
the Committee on Migrant Workers or the
5
2013 CISV Year of Human Rights
Background Reading
Committee against Torture, have similar
structures and use similar methods.
Regional enforcement of Human
Rights
In addition to the institutions and documents
of the United Nations a number of regional
measures have been made to strengthen the
enforcement of human rights. Although there
has been attempts also in Asia and the MiddleEast, the most credible regional human rights
mechanisms have so far been the European,
African and Inter-American initiatives.
The Charter of the Organization of American
States was adopted on April 30th 1948. The
American charter itself has limited focus on
human rights, but it was important in making
an evolution of an American human rights
regime possible. Only days after the adoption
of the charter, on May 2nd 1948, the
American Declaration of Human Rights was to
be adopted as well. The charter and
declaration was later followed by a legally
binding American Convention on Human
Rights, adopted in 1969 and entering into
force in 1978. The main instruments for
enforcement are the Inter-American
Commission on Human Rights and the InterAmerican Court of Human Rights.
The Council of Europe, not to be confused
with the European Council at the EU, was
created in 1949 by the then 10 member states.
Today the number of member-states are 47.
Due to, in their opinion, a slow UN progress
of making legally binding agreements, the then
western European countries came together to
make ‘their own’ European regional
Convention on Human Rights. The
convention was adopted in 1950 and entered
into force in 1953. The most important
European instrument for the enforcement of
The Protection Of Human Rights
human rights is the European Court of
Human Rights.
The Organization for African Unity, known
since 2001 as the African Union, adopted in
1981 the African Charter on Human and
Peoples’ Rights. The charter covers both civil
and political rights, and economic, social and
cultural rights. One interesting feature
regarding the african charter is that it includes
a range of duties in addition to rights. Another
point is its inclusion of ‘solidarity rights’ such
as the right to development, peace and
environment. The main human rights
instrument of the African Union is the
Commission on Human and Peoples‘ Rights.
There is also an African Court of Human and
Peoples’ Rights which came into being in
2004. The current plan is to merge the court
with the African Court of Justice as its role so
far has proved to be limited.
Some concluding thoughts
In this article we have explored how the
international human rights system works. A big
focus has been on the international agreements
and institutions of the United Nations. In
addition, we also took a brief look at regional
mechanisms for the protection of human
rights. We have gone through a charter, a
declaration, covenants, conventions, councils,
offices and committees, all aimed at protecting
human rights. What we have not mentioned is
the importance of NGOs and independent
individuals.
‘We’ might just have the most imporant role of
all; namely to influence and pressure states and
institutions to do their share of human rights
protection. Though there is a a huge, complex,
international system for the protection of
human rights, there is no international human
rights police which legitimately can force states
to respect them. Maybe this has to be our job?
6
2013 CISV Year of Human Rights
Background Reading
If we decide to take this job, no matter how
complex and confusing it might be, we need to
study the international system for the
protection of human rights. The table below
Level
Global
Institutions/Organisations
The United Nations
can be one way of summarizing the
enforcement of human rights as described in
this article:
Main documents
Charter
Declaration
Covenants
Conventions
Instruments for enforcement
Office of the High
Commissioner for Human
Rights
Charter- and treaty-based
instruments
Regional
Council of Europe
The European Convention The European Commission
on Human
on Human Rights
Rights
The European Human RIghts
Court
Organization of American States
American Declaration on The Inter-American
the Rights and Duties of Commission on Human
Man
Rights
American Convention on The Inter-American Human
Human Rights
Rights Court
The African Union
African Charter on Human African Commission on
and Peoples’ Rights
Human and Peoples’ Rights
The African Court on Human
and Peoples’ Rights
National
National parliament, national courts
Independent national human rights
institutions
The Protection Of Human Rights
National law and norms for Ratification of international
legislation
conventions and the
incorporation to national law
Research, observation,
monitoring, influencing
national legislation
7
2013 CISV Year of Human Rights
Background Reading
List of references and further reading
Main source:
Høstmælingen, Njål (2012): ‘Internasjonale Menneskerettigheter’ , Second edition,
Universitetsforlaget Oslo.
Other sources:
O’Byrne, Darren (2003): ‘Human Rights - An Introduction’ , Pearson Education Limited Edinburgh.
The office of the high commissioner for human rights has a website with extensive information:
http://www.ohchr.org/
Unicef’s definitions of terms such as ‘ratification’, ‘treaty’, ‘signature’ etc:
http://www.unicef.org/crc/files/Definitions.pdf
A UN-page on the Universal Declaration of Human Rights. Contains the declaration itself as well a
historical information on the making of it and general information on international human rights law:
http://www.un.org/en/documents/udhr/
Further reading:
Clapham, Andrew (2007): ‘Human Rights - a very short introduction’, Oxford University Press
Donnelly, Jack (2003): ‘Universal Human Rights in Theory and Practice’, Cornell University Press
The Protection Of Human Rights
8