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- Historical Background
- Laws of War
- International Human Rights Law in the Postwar Era
- Universal Jurisdiction
- Human Rights in the Twenty-First Century
After World War II, those building a new international legal structure understood that protecting the human rights of all people was necessary to avoid future global conflagrations. The spread of democracy further boosted human rights issues. Although nations continue to disagree about the universality of certain human rights, a clear global consensus has emerged about the need to recognize the fundamental rights of every individual.
Human rights have emerged as a major subject of international law since 1945. Before World War II, the international community gave little attention to how a country treated its own citizens within its own borders. This reluctance ended after the world witnessed the horrors committed by Germany against its own citizens during World War II, as well as by Germany and Japan against the citizens of the countries they occupied.
The focus on individual rights in Europe evolved over centuries as monarchs began to recognize the political and economic rights of at least some individuals. In England, the Magna Carta in 1215 and events in subsequent centuries gradually gave wealthy male property-owners some rights that they could assert against the crown. The American Declaration of Independence in 1776 declared that “all men are created equal,” but all of the original thirteen states in fact granted rights only to white males, and many only to male property-holders; African slaves, Native Americans, and women were granted no rights to participate in political decision-making. Slavery was not eliminated until almost nine decades after the United States declared its independence; women were not given the vote until 1920; and Native Americans were not finally accepted as U.S. citizens until 1924.
Like the American Revolution, the French Revolution in 1789 was based on concepts of individual liberty, and some European writers of the time articulated the watershed idea of a government, based on the consent of the governed, that would protect the worth of each individual. France and the other European nations moved slowly, however, in the direction of any real recognition of individual equality.
Laws of War
Western nations also made efforts in the nineteenth century to reduce the destructive effects of warfare by distinguishing between combatants and noncombatants and by protecting those captured in battle. In the United States, President Abraham Lincoln asked the political philosopher Francis Lieber to draft a code to govern military conduct during the U.S. Civil War (1860–1865). The laws of armed conflict were further developed by international treaties such as those promulgated at the 1899 and 1907 Hague Conferences, which attempted to protect civilians in time of war and focused on prohibiting the use of weapons that caused unnecessary suffering without providing a significant military advantage.
The Geneva Conventions of 1929 provided a comprehensive and widely ratified set of treaties designed to protect captives and civilians in warfare. These treaties were revised in the four Geneva Conventions of 1949 and were further updated through two protocols adopted in 1977.
These early efforts were important in providing some recognition of individual rights, but the real impetus to protect human rights at the international level did not begin until after World War II. The postwar trials of German and Japanese war criminals held in Nuremberg and Tokyo were defining moments in reinforcing the culpability of human rights abuses. Although criticized at the time as “victors’ justice,” that is to say, punishment of the losers of the war by the winners, the careful and dramatic evidentiary documentation of government planning and implementation of systematic wartime atrocities made clear the need to work toward a world where such depravities would “never again” occur.
International Human Rights Law in the Postwar Era
The most important event in the development of contemporary international human rights standards was the establishment of the United Nations in 1945. The United Nations Charter contains two key articles recognizing the importance of protecting the human rights of all individuals: Articles 55 and 56 state that the United Nations and its members shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
Pursuant to this mandate, delegates representing the founding members of the United Nations, led by the former U.S. first lady Eleanor Roosevelt, drafted the Universal Declaration of Human Rights, which listed the fundamental rights of individuals. This text was promulgated by the U.N. General Assembly in 1948, the same year the Genocide Convention was offered for ratification (the latter came into force in 1951). The Universal Declaration has come to be respected as an authoritative listing of rights, and its provisions are now widely regarded as customary international law.
Many U.N. delegates wanted a formal treaty to give the rights listed in the Universal Declaration even more force. The ensuing process of treaty drafting took eighteen more years. The United States and others viewed human rights as primarily civil and political rights, designed to allow individuals to participate in political decision-making and to protect them against government abuses. But other countries stressed the additional importance of economic, social, and cultural rights, arguing that food and shelter, for instance, were more basic and more important for those in the developing world than the more abstract civil and political rights. These different categories of rights require different mechanisms of enforcement, because economic rights can be protected only through the expenditure of money; thus, the enforcement of economic rights is commonly regarded as best undertaken by legislative bodies balancing competing priorities, rather than by courts with no budgetary responsibility.
Because of differences such as these, it was decided to prepare two separate treaties, and in 1966 the U.N. General Assembly promulgated both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.
In the first treaty, the fundamental civil and political rights include the right to life; the right to freedom from torture and cruel, inhuman, and degrading treatment; the right to freedom from slavery; the right to freedom from arbitrary arrest and detention; the right to equal treatment without regard to race or sex; the right to participate in political decision-making, directly or through chosen representatives; the rights to freedom of thought, conscience, and religion; the rights to freedom of opinion, expression, association, and assembly; the right to privacy; the right to freedom of movement; and the right to fair procedures in criminal, civil, and administrative matters.
The International Covenant on Civil and Political Rights is overseen by the Human Rights Committee, an eighteen-member body based in Geneva, Switzerland, with members elected by the countries that have ratified the treaty. Ratifying nations provide regular reports regarding their human rights record to the committee, and individuals can bring complaints against their own government, if the government has also ratified the Optional Protocol to the Covenant. The opinions issued by the committee are influential in clarifying the rights in the treaty and can be used by the complaining parties in their national courts. Complaints can also be filed by one country against another under Article 41 of the covenant.
The fundamental economic, social, and cultural rights in the second treaty include rights to free choice of employment and to form and join trade unions; rights to education, food, housing, and health care; the right to rest and leisure; and the right to participate in the cultural life of the community. Again, ratifying countries are expected to prepare reports regarding their protection of these rights, and the committee established to review these reports issues opinions to provide guidance to the ratifying countries.
Groups of people also have human rights recognized under international law: Article 27 of the International Covenant on Civil and Political Rights recognizes the right of members of ethnic, religious, and linguistic minorities to enjoy their own culture, practice their religion, and use their own language. Indigenous people who are not self-governing also have the right to self-determination. Other rights generally recognized as important, but whose specific content and means of enforcement continue to evolve, include the right to a clean and healthful environment, the right to economic development, and the right to peace.
In addition to these global covenants, many specialized treaties addressing specific human rights areas have been promulgated by the international community including the 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol), the 1966 International Convention on the Elimination of Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, the 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the 1989 Convention on the Rights of the Child, and the 1989 International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries. Also of substantial importance are the three regional human rights treaties: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights.
The European Court of Human Rights issues opinions binding on the European nations, and it has evolved into a court of last resort on a wide range of important and controversial issues. In the 2003 case of Lawrence v. Texas, the U.S. Supreme Court cited some of these European cases to provide support for a ruling that declared a Georgia law banning sodomy unconstitutional. The American Convention on Human Rights is overseen by a seven-member commission and a seven-member court, both based in San Jose, Costa Rica. Although this convention has not yet attained the near-universal ratification of the European Convention, the Inter-American Human Rights Commission and Court have issued numerous important opinions bringing clarity to human rights principles applicable in the Western Hemisphere.
Also helping to identify and protect human rights is the United Nations Commission on Human Rights, a body that reports to the U.N. Economic and Social Council (ECOSOC). The Human Rights Commission consists of fifty-three government representatives elected by ECOSOC for three-year terms. It meets in Geneva for six weeks each spring to discuss specific human rights violations, initiate studies and fact-finding missions, and draft conventions and declarations.
Because international and regional enforcement mechanisms (with the exception of the European Court of Human Rights) remain somewhat primitive and inadequate, some human rights victims have attempted to utilize national courts to bring claims against human rights abusers. These cases have been brought under the theory of “universal jurisdiction,” which allows those who violate the most fundamental human rights to be sued and prosecuted in any jurisdiction where they are found.
U.S. federal courts have adjudicated a number of universal jurisdiction claims, utilizing jurisdiction provided by the Alien Tort Claims Act, which was enacted by the First Federal Congress in 1789, and the Torture Victim Protection Act, enacted in 1992. A claim was brought in 1986 in the federal court in Hawaii, for example, by a class of 9,500 victims of torture, murder, and disappearance in the Philippines during the dictatorial regime of Ferdinand Marcos, which lasted from 1972 to 1986. A U.S. federal jury determined that Marcos was personally liable for these atrocities, and awarded the class members $775 million in compensatory damages and $1.2 billion in exemplary or punitive damages. Efforts to collect this judgment have been frustrated, but are continuing.
Other countries, including Spain and Belgium in particular, have also utilized universal jurisdiction to bring human rights abusers to justice. In late 1998, after former Chilean dictator general Augusto Pinochet arrived in London for a herniated disc operation, a Spanish judge asked the United Kingdom to extradite him to Spain for prosecution for torture and murder during his seventeen-year rule from 1973 to 1990. The British House of Lords ruled that Pinochet did not have any immunity from such prosecution and that he should be extradited, but the transfer never took place because of Pinochet’s declining health.
In the 1990s, the U.N. Security Council established criminal tribunals to prosecute those who had committed war crimes, crimes against humanity, or genocide during the civil war in the former Yugoslavia and the ethnic slaughter in Rwanda. More recently, tribunals utilizing both local and international judges have been established to prosecute those who engaged in criminal behavior in Sierra Leone and East Timor, and efforts are continuing to establish a similar tribunal in Cambodia.
To establish a permanent court to deal with future systematic abuses, the countries of the world met in Rome in the summer of 1998 to draft a treaty creating an International Criminal Court. The treaty needed sixty ratifications, which were obtained relatively rapidly, and the court came into existence in March 2003, when its eighteen judges from all over the world were sworn in. The International Criminal Court has jurisdiction over war crimes, crimes against humanity, and genocide, and it will gain jurisdiction over the crime of aggression, after that term is defined in further detail. Although some important nations, including the China, India, Russia, and United States, remain reluctant to ratify the court’s statute as of 2010, its establishment stands as a landmark achievement in the quest to protect human rights globally.
Human Rights in the Twenty-First Century
Although nations continue to disagree about the universality of certain human rights, a clear global consensus has emerged about the necessity of protecting the fundamental rights of every individual. The nations of the world have made enormous strides in defining these rights during the past sixty years. Although the mechanisms for protecting human rights are still evolving, the mix of national, regional, and international tribunals currently being employed to prosecute wrongdoers and provide compensation for victims is beginning to show promise. The dream of having a world where every individual’s rights are protected has not yet been attained, but progress toward that goal is continuing.
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