Overview of Rights Developments

Human rights were mostly unknown in general international law until 1945. France and the United States had both proclaimed the existence of the “rights of man” in the last quarter of the eighteenth century, building on philosophical arguments from the Enlightenment. But no general treaties existed on the subject until the United Nations era. There had been some rights talk in diplomacy, and a few treaties on certain minority rights and rights of aliens (foreigners). But it was only after the carnage and atrocities of the 1930s and 1940s that Franklin D. Roosevelt and others pushed for mention of human rights in the UN Charter, the closest document we have to a global constitution. He believed that human rights were linked to international peace and security, and that some of the origins of World War II lay in the human rights violations of Nazi Germany and Imperial Japan. There had been no mention of human rights in the Covenant of the League of Nations, although in 1919 Japan had pushed for a statement on racial equality, and the United Kingdom and the United States had been initially interested in a statement on religious freedom.

With human rights mentioned but not specified in the UN Charter, and with member states obligated very generally to cooperate in their promotion, states begin to define them as an international matter in the 1948 Universal Declaration of Human Rights. This UN General Assembly resolution, which was not legally binding at the time of adoption, laid out thirty principles pertaining to civil, political, economic, social, and cultural rights. UN developments thus reflected a broad conception of human rights consistent with the philosophy of social democracy held by key personalities like Eleanor Roosevelt of the United States (first president of the UN Human Rights Commission and a U.S. representative), Rene Cassin of France (who as a French representative was central in the drafting process), and John P. Humphrey of Canada (the latter being a member of the UN secretariat and also an important player behind the scenes). Certain other actors, especially various social democratic governments in Latin American, but also including the representatives of India, Lebanon, and the Philippines, and various nongovernmental organizations (NGOs) were actively engaged in the process.

By 1966 states had (slowly) negotiated the International Covenant on Civil and Political Rights (ICCPR) and the companion International Covenant on Economic, Social, and Cultural Rights (ICESCR). These, combined with the 1948 Universal Declaration, constituted the composite “International Bill of Human Rights” and the core of the new norms on internationally recognized human rights. By 2008, 162 states had ratified, and thus formally consented to be bound by, the ICCPR, and 159 had similarly accepted the ICESCR. (UN membership was 192.) The International Bill of Rights was then followed by a deluge of human rights treaties at the UN on such subjects as racial discrimination, apartheid (legally enforced racial segregation), women's rights, the rights of the child, religious freedom, torture and mistreatment, secret detention (enforced disappearances), and more. Not only states but also NGOs and international civil servants played important roles in these legislative developments.

One of the reasons for this proliferation of rights standards particularly in the form of general treaty law was that the original enforcement mechanisms were weak. So if one had difficulty in enforcing the provisions, say, of the ICCPR, the practical solution was seen in drafting new treaties on torture or enforced disappearances, among other subjects, to continue to shine the international spotlight on persistent violations. The fact was that while most states were willing to ratify general human rights treaties, albeit sometimes with reservations to particular provisions, many were not willing to create a UN human rights court with strong enforcement authority. They were only willing to set up a diplomatic review or monitoring process through which international bodies, frequently composed of independent experts rather than governmental representatives, could raise question about, but not compel change in, governmental policies. So in general, international human rights standards proliferated at the UN, but enforcement measures remained very weak for several decades. The fundamental cause of this situation was not lack of intelligence and creativity by those interested in international human rights, but governmental unwillingness to see state sovereignty, and hence freedom of policy choice, significantly restricted in the name of human rights. They might have wanted to be associated with rights talk, but they also wanted to retain considerable freedom of policy making when dealing with economic, security, and other issues. International relations showed not only growing attention to universal human rights, but also the continuing strength of a narrow, provincial, or noncosmopolitan nationalism.

This general situation was partially remedied by human rights developments in certain regions, where strong regional treaties on human rights were negotiated accompanied by strong enforcement measures. This was clearly the case in Europe where one found the European Convention on Human Rights and Fundamental Freedoms enforced by the supranational European Court of Human Rights. Also in Europe one found the European Union and its supranational European Court of Justice. These latter bodies increasingly manifested a human rights dimension or component.

Also, in the Americas one found the Organization of American States, the American Declaration and Inter-American Convention on Human Rights, and the Inter-American Court of Human Rights. (There was also the Inter-American Commission on Human Rights.) The regional human rights institutions in the Western Hemisphere functioned in a way that was mostly inferior to those in Europe but superior to UN arrangements.

In Africa, as the African Union replaced the Organization of African states, one found the African Charter of Human and People's Rights, along with a Human Rights Commission and embryonic Human Rights Court. But African arrangements functioned less well than in Europe and the Americas. No other regional human rights courts existed, although various regional organizations were involved in human rights matters. Thus such bodies as the Arab League, the Organization of the Islamic Conference, the Association of Southeast Asian Nations, and other organizations all found themselves dealing with human rights issues. But these latter organizations, while they might have manifested human rights diplomacy, did not manifest strong and authoritative enforcement procedures.

The persistent problem of weak enforcement of internationally recognized human rights standards was also partially remedied by certain institutional developments from the 1990s. After World War II the Nuremberg and Tokyo Trials held certain German and Japanese individuals accountable for war crimes, crimes against humanity, and aggression (crimes against peace). For about fifty years there were no other international criminal courts. In 1993 and 1994 the UN Security Council created international criminal courts for certain international crimes committed in the territory of the Former Yugoslavia from 1991 and in Rwanda during 1994. Hence the idea of international criminal courts was resurrected for the crimes of genocide, crimes against humanity, and war crimes, covering particular areas during particular times.

Building on these developments, in 1998 states, with many NGOs playing a strong supporting role, created the International Criminal Court. It become operational in 2002, the first ever permanent international criminal court with potentially global reach to try individuals for gross violations of human rights—namely, genocide, crimes against humanity, and war crimes. By 2008, one trial was scheduled (arising out of the Democratic Republic of the Congo), several investigations and indictments possibly leading to trials were underway (pertaining to Uganda, for example), and indictments had been issued charging certain high officials and seeking their arrest (in relation to events in Darfur, Sudan).

So the idea of international criminal courts trying individuals (or in some cases partially internationalized or mixed or hybrid criminal courts) helped to remedy the problem of weak enforcement of at least certain human rights norms. At the same time, on rare occasions the International Court of Justice (or World Court), which heard disputes between states, but only with the consent of states, also ruled on human rights matters in its binding and advisory proceedings—for example regarding genocide in the Balkans, or the Israeli security wall and the Fourth Geneva Convention of 1949 to protect individuals in occupied territory. (As a companion to international human rights law, one finds international humanitarian law, or the laws of war, much of which seeks to protect human dignity in war, legally known as armed conflict. International courts deal both with human rights law, such as prohibiting torture, and humanitarian law, such as prohibiting torture of those detained in relation to armed conflict.)

To be sure, criminal courts of various types were not the only responses chosen to deal with human rights violations. The notion of transitional justice became more prevalent. That is, in the transition from a situation of major rights violations to a situation of institutionalized rights protection, one might rely on not just criminal prosecution but also on other measures including truth commissions and reports, reparations, apologies, and certain nonjudicial punishments such as denial of holding public office (lustration). In general, the international community experimented with a wide variety of measures for enhancing human rights in general—and humanitarian law in times of armed conflict and occupation.

It cannot be stressed enough that both the negotiation of human rights standards and also their enforcement depends greatly on states and their foreign policies. Private individuals might play important roles, along with NGOs and officials of intergovernmental organizations, but it is states that approve the treaties, and states that either push for strong enforcement or not. They might work with or resist the other actors. Many nonstate actors are important in international relations—from corporations to terrorist groups to heads of UN agencies. Still, it was the territorial state, said to possess sovereign authority, that was of great importance to many human rights developments.

In retrospect one can see since 1945: (1) the development of an extensive international law of human rights and humanitarian affairs (or if one prefers, human rights norms in peace and war); (2) from about 1970 an increasing seriousness devoted to the subject through the hard law of court cases and the soft law of diplomacy, much of it occurring under pressure from a growing number of NGOs interested in human rights; and (3) a persistent concern by many states, including some liberal democracies, to be associated with rights talk but to try to preserve as much national or unilateral freedom of policy making as possible.

In fact, this last problem is as old as it is central. Franklin Roosevelt and Harry Truman, both supportive of certain developments on human rights in international relations, realized that if one constructed a strong international legal regime for human rights, it would reduce national freedom of policy making—and in the case of the United States spotlight difficulties, particularly on race relations in the south. These presidents might have been in favor of progressive change concerning American racial discrimination, but they were aware that certain treaty language on human rights would never be consented to by the U.S. Senate in that era, given the power of southern senators in that body. Hence, from the beginning of the UN era, there was a persistent and palpable tension between the goal of advancing human rights around the world and the necessity to accommodate strong oppositional forces at home. In quite a few countries during certain eras, those opposed to a strong international law on human rights (and on humanitarian affairs) controlled the executive branch and the conduct of foreign policy. They might have given lip service to internationally recognized human rights, but their nationalism caused them to place emphasis on state sovereignty. International relations remained a modified system of territorial states, said to possess sovereignty or ultimate legal authority, even as universal rights talk and international rights standards proliferated.