International Human Rights Law

Rights are legitimate claims held by individuals and individuals organized into groups, communities, or states; lawyers call rights “entitlements” (Gibson, John S. 1996. Dictionary of International Human Rights Law. The Scarecrow Press: London. vii). I speak of rights as legitimate claims that are expressed by women, men, and queer in speech-acts. Gibson is clear about the fact that “a right in a treaty is an ideal unless it is implemented as a law” (ibid. 15). This means that human rights are socially realized if they are implemented and “implementation of human rights is the elevating of the right in a treaty or other source in law to the realization of its enjoyment by humans” (ibid.).

At the beginning of December 1947, it was clear to the Human Rights Commission of the United Nations that agreement on an International Bill of Rights that would be a legal instrument with a strong enforcement component was not in sight (Leher, Stephan P. 2018. Dignity and Human Rights. New York: Routledge. 25). Therefore, Eleanor Roosevelt intensified and focused work on a Draft International Declaration of Human Rights (ibid.). On December 10, 1948, the United Nations proclaimed the UDHR. Implementation of human rights by international conventions was realized in 1976 with the International Covenant on Economic, Social and Cultural Rights (ESCR) and the International Covenant on Civil and Political Rights (ICCPR). Ever since the 1969 Vienna Convention on Treaties was signed, a state has been obliged by its commitments in a human rights treaty to comply with the provisions of the treaty in good faith (Gibson 1996: 17). Construction of the term “state under the rule of law” follows the validity-condition that its laws correspond, agree, and concur with the claims of human rights values and human rights law (Welan, Manfried. 2001. On the state under the rule of law. Der Österreich1 Essay. ORF 1, April 20, 2001). Today the constitutional value of dignity is common to most constitutional rights in liberal democratic constitutions, asserts Aharon Barak (Leher 2018: 40). Nevertheless, it is true that the social realization of dignity is an ongoing process and struggle that requires tireless work and the realizing energies of all women, men, and queer.

In the late eighteenth century, the United States and France proclaimed legal and political rights; economic, social, and cultural rights emerged in the nineteenth century, and entered the legal system of states in the late nineteenth and twentieth centuries (Gibson 1996: 7). The Preambles to the ESCR and the ICCPR again recognize that “all human beings are born free and equal in dignity and rights,” as proclaimed in Article 1 of the UDHR. They further link the realization of dignity and the realization of world peace: “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” (International Convention on Economic, Social and Cultural Rights” and “International Covenant on Civil and Political Rights” United Nations, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx). From the many international conventions that entered into force since that time I would like to cite from the Preambles of only two of them. The Convention on the Elimination of All Forms of Discrimination against Women that entered into force on September 3, 1981, and the Convention on the Rights of the Child that entered into force on September 2, 1990 claim the social realization of dignity with respect to rights of individual persons still living in societies that did not implement these rights. I cite the Preamble and from two articles of the Convention on the Elimination of All Forms of Discrimination against Women (Convention on the Elimination of All Forms of Discrimination against Women” http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm):

The States Parties to the present Convention, Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women,

Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex,

Noting that the States Parties to the International Covenants on Human Rights have the obligation to ensure the equal right of men and women to enjoy all economic, social, cultural, civil and political rights,

Considering the international covenants concluded under the auspices of the United Nations and the specialized agencies promoting equality of rights of men and women,

Noting also the resolutions, declarations and recommendations adopted by the United Nations and the specialized agencies promoting equality of rights of men and women,

Concerned, however, that despite various instruments extensive discrimination against women continues to exist,

Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity,

Concerned that in situations of poverty women have the least access to food, health, education, training and opportunities for employment of other needs,

Convinced that the establishment of the new international economic order based on equity and justice will contribute significantly towards the promotion of equality between men and women,

Emphasizing, that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neocolonialism, aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full enjoyment of the rights of men and women,

Affirming that the strengthening of international peace and security, the relaxation of international tension, mutual cooperation among all States irrespective of their social and economic system, general and complete disarmament, in particular nuclear disarmament under strict and effective international control, the affirmation of the principles of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for national sovereignty and territorial integrity, will promote social progress and development and as a consequence will contribute to the attainment of full equality been men and women,

Convinced that the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields,

Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole,

Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women,

Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination against Women and, for that purpose, to adapt the measures required for the elimination of such discrimination in all its forms and manifestations,

Have agreed on the following: …

Part I

Article I

For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

I also cite the Preamble and from Article 7 of the Convention on the Rights of the Child (Convention on the Rights of the Child” http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx):

The States Parties to the present Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom,

Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,

Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1950 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children,

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”,

Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adaption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict,

Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration,

Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child,

Recognizing the importance of international cooperation for improving the living conditions of children in every country, in particular in the development countries,

Have agreed as follows …

Article 7 …. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

It is the task of national parliaments to implement into national law the rights that the States Parties agreed to in these Conventions. It is the task of independent courts and their judges to interpret the legislative rights as realizations of the right to human dignity. The entire legal system is called upon to interpret the laws defined by democratic parliamentary debate and ensure their application to the concrete cases brought in court (Leher 2018: 40). In 2011 there are 193 member states to the United Nations (UN) (http://www.un.org/en/member-states/). It is a sad reality of our world that in many member states women, men, queer and children do not enjoy effective access to the protection afforded by laws and courts as claimed in the above UN documents.

Specific rights realize dignity as a human right. Article 2 of the UDHR proclaims Civil and Political Rights against Discrimination, so does Article 26 of the ICCPR: “All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status” (Gibson 1996: 54).

Article 3 of the UDHR proclaims the Civil and Political Rights to Life and the Legal Rights to Security of Person: “Everyone has the right to life, liberty and security of person.” The Right to Life is again claimed in ICCPR, Article 6, paragraph I: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” (ibid. 56).

Article 4 of the UDHR proclaims: “No one shall be held in slavery or servitude; slavery and slave trade shall be prohibited in all their forms.” This Collective Right is also proclaimed in ICCPR, Article 8 (ibid. 196).

Article 5 of the UDHR proclaims the prohibition of torture: “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment” (see also: ICCPR, Article 7) (ibid. 130).

Article 6 of the UDHR proclaims the legal rights of persons before the law: “Everyone has the right to recognition everywhere as a person before the law.”

Article 7 of the UDHR proclaims the legal right to equal protection under the law that applies to all human rights. Article 26 ICCPR additionally claims the legal right to equality before the law and protection against discrimination (ibid. 109).

Articles 8 to 11 of the UDHR also proclaim legal rights. Article 8 proclaims the right to a legal remedy: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”

Article 9 of the UDHR proclaims: “No one shall be subjected to arbitrary arrest, detention or exile.”

Gibson cites UDHR, Article 9 also in the context of aliens (Collective Rights). ICCPR, Article 13: An alien, that is “any individual who is not a national of a State in which he or she is present,” may be expelled only according of the law in the territory of a State Party to the ICCPR where the alien is lawfully present except for compelling reasons of national security (Gibson 1996: 172).

Article 10 of the UDHR concerns courts/tribunals: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 11 of the UDHR proclaims the innocence presumption: “(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

Articles 12–15 of the UDHR claim civil and political rights.

Article 12 claims dignity, honor, reputation: “No one shall be subjected to … unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Article 13 claims on territory, movement: “Freedom of movement within each state and to leave and return to his country.”

Article 14 claims the tight to asylum and Article 15 the right to nationality.

Article 16 of the UDHR claims economic, social, and cultural rights for the family. See also ICCPR, Article 23:

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (2) The right of men and women of marriageable age to marry and to found a family shall be recognized (3) No marriage shall be entered into without the free and full consent of the intending spouses (4) States parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage, and at its dissolution. In case of dissolution, provision shall be made for the necessary protection of any Children.

Article 17 of the UDHR claims the civil and political right to own property:

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

There is no provision on property in ICCPR and ESCR “because of failure in the negotiations of these covenants to reach agreement on the right to compensation” (ibid. 72). James Madison (1751–1836) on the inherent right to property: “… a man has property in his opinions and the free communication of them. He has property of peculiar value in his religious opinions, and in the profession and practices dictated by them. He has property very dear to him in the safety and liberty of his person … In a word, as a man is said to have a right to his property, he may be equally said to have property in his rights (Fifth Amendment to the Constitution of the United States of December 15, 1791)” (ibid. 71).

Article 18 of the UDHR and ICCPR, Article 18 proclaim on religion: Everyone has the right to freedom of thought, conscience, and religion (ibid. 72–73).

Article 19 of the UDHR and Articles 19 and 20 of the ICCPR claim rights concerning speech and press. ICCPR, Article 19:

Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The exercise of these rights carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for respect of the rights and reputations of others. For the protection of national security or public order or of public health and morals.

ICCPR, Article 20:

Any propaganda for war shall be prohibited by law. Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law.

Article 20 of the UDHR claims the rights to assembly and association, Article 21 claims civil and political rights to political and public service. Article 22 claims the economic, social and cultural right to social security. Article 23 claims the economic, social and cultural right to work. Article 24 concerns the right to leisure, limitation of working hours, and periodic holidays with pay.

Article 25 of the UDHR claims the right to food and health:

1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26 of the UDHR concerns the economic, social, and cultural right to education (see also ESCR, Article 13 and ESCR, Article 14 on implementation of the right to education) (ibid. 145). ESCR, Article 13(1):

The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance, and friendship among all nations and all racial, ethnic, or religious groups, and further the activities of the United Nations for the maintenance of peace.

Article 27 of the UDHR concerns rights to culture:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28 of the UDHR claims the right to international polity:

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29 of the UDHR claims duties and rights:

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30 of the UDHR secures the integrity of the UDHR:

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

There are legal rights that are not mentioned in the UDHR, but in the ICCPR:

ICCPR Article 14, paragraph 5 claims the right to appeal (ibid. 89):

Everyone convicted of a crime shall have the right to his or her conviction and sentence being reviewed by a higher tribunal according to law.

ICCPR Article 9, paragraph 3 claims the right to bail (ibid. 92–93):

It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

ICCPR Article 9, paragraph 5 claims the right to compensation (ibid. 94):

Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation.

ICCPR Article11 claims a right concerning contract inability (ibid. 96)

No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.

The UDHR does not explicitly mention the death penalty. ICCPR Article 6 claims that this “penalty can only be carried out pursuant to a final judgment rendered by a competent court” and is substantially broadened in the ICCPR’s Second Optional Protocol on Capital Punishment, 1989: Article 1, paragraph 1: “no one within the jurisdiction of a State Party to the present Protocol shall be executed”; and paragraph 2: “each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction” (ibid. 99).

Due process of law is not mentioned in the covenants or conventions on international human rights law (ibid. 105). “Due process of law is the exercise of the powers of government to provide protection to one accused of violation of the law and to afford the accused of his or her rights of protection if or until a determination of an accusation is made by judicial authority” (ibid.). United States Supreme Court Justice Felix Frankfurter affirms: “The history of liberty has largely been the history of the observance of procedural safeguards” (ibid. 106). “The foundation rights of Legal Rights are basic to the enjoyment of due process of the law. The five categories of due process rights are arrest, detention, trial, post-trial, and punishment” (ibid.).