Journal of Humanitarian Medicine - Vol.

XII - N° 1 - January-March 2012

INTERNATIONAL HUMAN RIGHTS LAW

Frans Viljoen

Director, Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa

The phrase “human rights” may be used in an abstract gal recognition and actual realization of human rights. His-
and philosophical sense, either as denoting a special cate- tory shows that governments do not generally grant rights
gory of moral claim that all humans may invoke or, more willingly but that rights gains are only secured through a
pragmatically, as the manifestation of these claims in pos- successful challenge to absolutist authority. Following on
itive law, for example, as constitutional guarantees to hold the Magna Carta, which set limits on the powers of royal
Governments accountable under national legal processes. Government in thirteenth century England, the 1776 Amer-
While the first understanding of the phrase may be referred ican Declaration of Independence and the 1789 French
to as “human rights”, the second is described herein as Declaration des droits de l’Homme et de du citoyen (Dec-
“human rights law”. laration of the Rights of Man and Citizen) were landmarks
While the origin of “human rights” lies in the nature of how revolutionary visions could be transformed into na-
of the human being itself, as articulated in all the world’s tional law and made into justiciable guarantees against fu-
major religions and moral philosophy, “human rights law” ture abuse.
is a more recent phenomenon that is closely associated The traditional categorization of three generations of
with the rise of the liberal democratic State. In such States, human rights, used in both national and international hu-
majoritarianism legitimizes legislation and the increasing- man rights discourse, traces the chronological evolution of
ly bureaucratized functioning of the executive. However, human rights as an echo to the cry of the French revolu-
majorities sometimes may have little regard for “numeri- tion: Liberté (freedoms, “civil and political” or “first gen-
cal” minorities, such as sentenced criminals, linguistic or eration” rights), Egalité (equality, “socio-economic” or
religious groups, non-nationals, indigenous peoples and the “second generation” rights), and Fraternité (solidarity, “col-
socially stigmatized. It therefore becomes necessary to lective” or “third generation” rights). In the eighteenth and
guarantee the existence and rights of numerical minorities, nineteenth centuries, the struggle for rights focused on the
the vulnerable and the powerless. This is done by agree- liberation from authoritarian oppression and the corre-
ing on the rules governing society in the form of a con- sponding rights of free speech, association and religion and
stitutionally entrenched and justiciable bill of rights con- the right to vote. With the changed view of the State role
taining basic human rights for all. Through this bill of in an industrializing world, and against the background of
rights, “human rights law” is created, becoming integral growing inequalities, the importance of socio-economic
to the legal system and superior to ordinary law and ex- rights became more clearly articulated. With growing glob-
ecutive action. alization and a heightened awareness of overlapping glob-
In this article, some aspects of the history of human al concerns, especially due to extreme poverty in some
rights law at the global, regional and subregional levels parts of the world, “third generation” rights, such as the
are traced. The focus falls on the recent, rather than the rights to a healthy environment, to self-determination and
more remote, past. To start with, some observations are to development, have been adopted.
made about the “three generations” of human rights law. During the period of the cold war, “first generation”
rights were prioritized in Western democracies, while sec-
Three generations of international human rights law ond generation rights were resisted as socialist notions. In
the developing world, economic growth and development
Human rights activism can be described as a struggle were often regarded as goals able to trump “civil and po-
to ensure that the gap between human rights and human litical” rights. The discrepancy between the two sets of rights
rights law is narrowed down in order to ensure the full le- was also emphasized: “civil and political” rights were said

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to be of immediate application, while “second generation” made up of 54 governmental representatives elected by the
rights were understood to be implemented only in the long Council, irrespective of the human rights record of the States
term or progressively. Another axis of division was the sup- concerned. As a consequence, States earmarked as some of
posed notion that “first generation” rights place negative the worst human rights violators served as members of the
obligations on States while “second generation” rights place Commission. The main accomplishment of the Commis-
positive obligations on States. After the fall of the Berlin sion was the elaboration and near-universal acceptance of
Wall, it became generally accepted that such a dichotomy the three major international human rights instruments: the
does not do justice to the extent to which these rights are Universal Declaration of Human Rights, adopted in 1948,
interrelated and interdependent. The dichotomy of posi- the International Covenant on Civil and Political Rights
tive/negative obligations no longer holds water. It seems (ICCPR) and the International Covenant on Economic, So-
much more useful to regard all rights as interdependent and cial and Cultural Rights (ICESCR), the latter two adopted
indivisible, and as potentially entailing a variety of obliga- in 1966. As the adoption of those two separate documents
tions on the State. These obligations may be categorized as indicates, the initial idea of transforming the Universal Dec-
the duty to respect, protect, promote and fulfil. laration into a single binding instrument was not accom-
plished, mainly due to a lack of agreement about the jus-
Global level ticiability of socio-economic rights. As a result, individual
complaints could be lodged, alleging violations by certain
For many centuries, there was no international human States of ICCPR, but not so with ICESCR.
rights law regime in place. In fact, international law sup- The normative basis of the UN Charter system is the
ported and colluded in many of the worst human rights Universal Declaration of Human Rights, adopted on 10 De-
atrocities, including the Atlantic Slave Trade and colo- cember 1948, which has given authoritative content to the
nialism. It was only in the nineteenth century that the in- vague reference to human rights in the UN Charter. Al-
ternational community adopted a treaty abolishing slavery. though it was adopted as a mere declaration, without a bind-
The first international legal standards were adopted under ing force, it has subsequently come to be recognized as a
the auspices of the International Labour Organization universal yardstick of State conduct. Many of its provisions
(ILO), which was founded in 1919 as part of the Peace have acquired the status of customary international law.
Treaty of Versailles. ILO is meant to protect the rights of Faced with allegations of human rights violations, par-
workers in an ever-industrializing world. ticularly in apartheid South Africa, the Commission had
After the First World War, tentative attempts were to devise a system for the consideration of complaints.
made to establish a human rights system under the League Two mechanisms emerged, the “1235” and “1503” proce-
of Nations. For example, a Minority Committee was es- dures, adopted in 1959 and 1970, respectively, each named
tablished to hear complaints from minorities, and a Man- after the Economic and Social Council resolution estab-
dates Commission was put in place to deal with individ- lishing them. Both mechanisms dealt only with situations
ual petitions of persons living in mandate territories. How- of gross human rights violations. The difference was that
ever, these attempts had not been very successful and came the “1235” procedure entailed a public discussion while
to an abrupt end when the Second World War erupted. It “1503” remained confidential. In order to fill the gap in
took the trauma of that war, and in particular Hitler’s crude effective implementation of human rights, a number of spe-
racially-motivated atrocities in the name of national so- cial procedures were established by the Commission.
cialism, to cement international consensus in the form of Unique procedures take the form of special rapporteurs,
the United Nations as a bulwark against war and for the independent experts or working groups looking at a par-
preservation of peace. ticular country (country-specific mandate) or focusing on
The core system of human rights promotion and pro- a thematic issue (thematic mandate).
tection under the United Nations has a dual basis: the UN Leapfrogging a few decades to 2005, in his report In
Charter, adopted in 1945, and a network of treaties sub- Larger Freedom: Towards Development, Security and Hu-
sequently adopted by UN members. The Charter-based sys- man Rights for All, the former UN Secretary-General, Kofi
tem applies to all 192 UN Member States, while only those Annan, called for the replacement of the Commission by a
States that have ratified or acceded to particular treaties smaller, permanent and human rights-compliant Council,
are bound to observe that part of the treaty-based (or con- able to fill the credibility gap left by States that used their
ventional) system to which they have explicitly agreed. Commission membership “to protect themselves against
criticism and to criticize others”.1 The major reason for re-
Charter-based system placing the Commission was the very selective way in which
it exercised its country-specific mandate, due mainly to the
This system evolved under the UN Economic and So- political bias of representatives and the ability of more pow-
cial Council, which set up the Commission on Human erful countries to deflect the attention away from them-
Rights, as mandated by Article 68 of the UN Charter. The selves and those enjoying their support. In 2006, the Gen-
Commission did not consist of independent experts, but was eral Assembly decided to follow the Secretary-General’s

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recommendation, creating the Human Rights Council as a 1966. The international human rights regime then started
replacement to the Commission on Human Rights.2 to move away from a generic focus, shifting its attention
There are some important differences between the for- instead to particularly marginalized and oppressed groups
mer Commission on Human Rights and the current Human or themes: the Convention on the Elimination of All Forms
Rights Council. As a subsidiary organ of the General As- of Discrimination against Women (CEDAW) adopted in
sembly, the Council enjoys an elevated status compared to 1979; the Convention against Torture and Other Cruel, In-
the Commission, which was a functional body of the Eco- human or Degrading Treatment or Punishment (1984); the
nomic and Social Council. It has a slightly smaller mem- Convention on the Rights of the Child (1989); the Inter-
bership (47 States) and its members are elected by an ab- national Convention on the Protection of the Rights of All
solute majority of the Assembly (97 States). To avoid pro- Migrant Workers and Members of Their Families (1990);
longed dominance by a few States, members may be elect- and the Convention on the Rights of Persons with Dis-
ed only for two consecutive three-year terms. The Council abilities (2006). The latest treaty is the International Con-
serves as a standing or permanent body, which meets reg- vention for the Protection of All Persons from Enforced
ularly, not only for annual “politically charged six-week Disappearances (ICED), also adopted in 2006 but yet to
sessions” as the Commission did. Following the more hu- enter into force. With the adoption of an Optional Proto-
man rights-sensitive selection criteria, the list of States elect- col to ICESCR in 2008, allowing for individual complaints
ed by the Assembly contrasts with countries which, in 2006, regarding alleged violations of socio-economic rights, the
served on the Commission. The Assembly may, by a two- UN treaty system now also embodies the principle that all
thirds majority vote, suspend a member that engages in rights are justiciable.
gross and systematic human rights violations.
The Human Rights Council retained most of the spe- Office of the UN High Commissioner
cial procedures, including the confidential “1503” (now
called the “compliant procedure”), and introduced the Uni- Twenty years after the adoption of the Universal Dec-
versal Peer Review (UPR). Starting in April 2008, one- laration, the first International Conference on Human Rights
third of the UN Member States have undergone this pro- was held in 1968 in Teheran. As the world was at that
cess. The UPR shows similarities to the African Peer Re- stage caught in the grip of the cold war, little consensus
view Mechanism which has been set up under the New emerged and not much was achieved. The scene was very
Partnership for Africa’s Development (NEPAD). different when the second world conference took place in
Apart from the Universal Declaration on Human Vienna in 1993. The cold war had come to an end, but
Rights, the General Assembly adopted numerous other dec- the genocide in Bosnia and Herzegovina was unfolding.
larations. When sufficient consensus emerges between Against this background, 171 Heads of State and Govern-
States, declarations may be transformed into binding agree- ment met and adopted the Vienna Declaration and Pro-
ments. It is revealing that the required level of agreement gramme of Action. It reaffirmed that all rights are uni-
is lacking on crucial issues, such as the protection of non- versal, indivisible and interdependent. Several resolutions
hegemonic citizenship. The two relevant declarations – the adopted there were subsequently implemented, including
Declaration on the Rights of Persons belonging to Ethnic, the adoption of an Optional Protocol to CEDAW and the
Religious and Linguistic Minorities, adopted in 1992, and establishment of the Office of the United Nations High
the Declaration on the Rights of Indigenous Peoples, adopt- Commissioner for Human Rights, with the first High Com-
ed in 2007 – have not been translated into binding instru- missioner (José Ayala Lasso) elected in 1994. The High
ments. The same is true of the Declaration on the Right Commissioner has the major responsibility for human rights
to Development, which was adopted in 1986. in the United Nations. The increasingly important human
rights field presence in ratcheted countries also falls un-
Treaty-based system der this Office.
Other conferences have also highlighted important is-
The treaty-based system developed even more rapid- sues, such as racism and xenophobia, which were discussed
ly than the Charter-based system. The first treaty, adopt- at the 2001 World Conference Against Racism, held in
ed in 1948, was the Convention on the Prevention and Durban, South Africa. This culminated in the adoption of
Punishment of the Crime of Genocide, which addressed the Durban Declaration and Programme of Action. A re-
the most immediate past experience of the Nazi Holocaust. view conference to assess progress in the implementation
Since then, a huge number of treaties have been adopted, of the Declaration took place in April 2009.
covering a wide array of subjects, eight of them on hu-
man rights – each comprising a treaty monitoring body – Regional level
under the auspices of the United Nations.
The first, adopted in 1965, is the International Con- Since the Second World War, three regional human
vention on the Elimination of All Forms of Racial Dis- rights regimes – norms and institutions that are accepted
crimination (CERD), followed by ICCPR and ICESCR in as binding by States – have been established. Each of these

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systems operates under the auspices of an intergovernmental phasizes the independence and sovereignty of its members,
organization or an international political body. In the case but no mention is made in its founding document of ei-
of the European system – the best of the three – it is the ther the contents or principles of human rights.
Council of Europe, which was founded in 1949 by 10 West- At the Teheran World Conference in 1968, some Arab
ern European States to promote human rights and the rule States managed to have the position of Arabs in the terri-
of law in post-Second World War Europe, avoided a re- tories occupied by Israel included in the agenda and suc-
gression into totalitarianism and served as a bulwark against cessfully articulated it as a human rights issue. This creat-
Communism. The Organization of American States (OAS) ed awareness of human rights among the Arab States in
was founded in 1948 to promote regional peace, security the aftermath of a number of defeats at the hands of Israel
and development. In Africa, a human rights system was in 1967. However, at the Teheran Conference and there-
adopted under the auspices of the Organization for African after, the commitment of the Arab League to human rights
Unity (OAU), which was formed in 1963 and transformed was primarily on directing criticism against Israel over its
in 2002 into the African Union (AU). treatment of the inhabitants in Palestine and other occupied
In each of the three systems, the substantive norms are areas. In 1968, a regional conference on human rights was
set out in one principal treaty. The Council of Europe held in Beirut, where the Permanent Arab Commission on
adopted its primary human rights treaty in 1950: the Eu- Human Rights (ACHR) was established. Since inception,
ropean Convention of Human Rights and Fundamental the ACHR has been a highly politicized body, with its po-
Freedoms. Incorporating the protocols adopted thereto, it litical nature accentuated by the method of appointment.
includes mainly “civil and political” rights, but also pro- The Commission does not consist of independent experts,
vides for the right to property. All 47 Council of Europe as in many other international human rights bodies, but of
members have become party to the European Convention. government representatives. On 15 September 1994, the
OAS adopted the American Convention on Human Rights Council of the League of Arab States adopted the Arab
in 1969, which has been ratified by 24 States. The Amer- Charter on Human Rights, whose entry into force, which
ican Convention contains rights similar to those in the Eu- required seven ratifications, was reached in 2008.
ropean Convention but goes further by providing for a min- OIC, established in 1969, aims at the promotion of Is-
imum of “socio-economic” rights. In contrast to these two lamic solidarity among the 56 Member States and works
treaties, the African Charter, adopted by OAU in 1981, towards cooperation in the economic, cultural and politi-
contains justiciable “socio-economic” rights and elaborates cal spheres. The major human rights document, adopted
on the duties of individuals and the rights of peoples. All in Cairo in 1990 under this framework, is the Cairo Dec-
AU members are parties to the African Charter. laration on Human Rights in Islam, which is of a declam-
The way in which the principal treaty is implemented atory nature only. As its title indicates, and given the aims
or enforced differs in each region. In an evolution span- of OIC, the declaration is closely based on the principles
ning many decades, the European system of implementa- of the Shari’ah. In 2004, OIC adopted a binding instru-
tion, operating out of Strasbourg, France, developed from ment with a specific focus: the Covenant on the Rights of
a system where a Commission and a Court co-existed to the Child in Islam. This Convention is open for ratifica-
form a single judicial institution. The European Court of tion and will enter into force after 20 OIC member States
Human Rights deals with individual cases. A dual model have ratified it. Although the Convention provides for a
is in place in the Americas, consisting of the Inter-Amer- monitoring mechanism – the Islamic Committee on the
ican Commission, based in Washington, D.C., and the In- Rights of the Child – its mandate is only vaguely drafted.
ter-American Court of Human Rights, based in San José, Overlapping to some extent with the Muslim world,
Costa Rica. Individual complainants have to submit their the heterogeneous Asian region stretches from Indonesia
grievances to the Inter-American Commission first; there- to Japan, comprising a diverse group of nations. Despite
after, the case may proceed to the Inter-American Court some efforts by the United Nations, no supranational hu-
of Human Rights. The Commission also has the function man rights convention or body has been established in the
of conducting on-site visits. After some recent institution- Asia-Pacific region. In the absence of an intergovernmen-
al reforms, the African system now resembles the Inter- tal organization serving as a regional umbrella that unites
American system. all the diverse States in this region, a regional human rights
Fledgling Arab and Muslim regional systems have al- system remains unlikely.
so emerged under the League of Arab States and the Or-
ganization of the Islamic Conference (OIC). According to Subregional level
the Islamic world view, the Koran and other religious
sources play a dominant role in the regulation of social life. In more recent times, the subregional level has emerged
The League of Arab States was founded in terms of as another site for human rights struggle, particularly in
the Pact of the League of Arab States of 1945. Its over- Africa. As a result of a weak regional system under the
riding aim is to strengthen unity among Arab States by African Union, a number of African sub-Regional Eco-
developing closer links between its members. The Pact em- nomic Communities (RECs) emerged from the 1970s: most

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prominently, the Economic Community of West African States. Non-governmental organizations have been very in-
States, the Common Market for Eastern and Southern fluential in advancing awareness on important issues and
Africa, the Southern African Development Community have prepared the ground for declarations and treaties sub-
(SADC) and the East African Community (EAC). Although sequently adopted by the United Nations.
these RECs are primarily aimed at subregional economic The role of civil society is of particular importance
integration, and not at the realization of human rights, there when the contentiousness of an issue inhibits State action.
is an inevitable overlap in that their aims of economic in- The Yogyakarta Principles on the Application of Interna-
tegration and poverty eradication are linked to the real- tional Human Rights Law in relation to Sexual Orienta-
ization of socio-economic rights. In a number of the found- tion and Gender Identity is a case in point. Although it
ing treaties of RECs, human rights are given explicit recog- was adopted in November 2006 by 29 experts from only
nition as being integral to the organizations’ aims. By cre- 25 countries, the 29 principles contained in the document
ating subregional courts with an implicit, or sometimes ex- – related to State obligations in respect of sexual orienta-
plicit, mandate to deal with human rights cases, it is ap- tion and gender identity – are becoming an international-
parent that these economic communities have become key ly accepted point of reference and are likely to steer fu-
role-players in the African regional human rights system. ture discussions.
Two decisions of subregional courts illustrate the grow- The international human rights law landscape today
ing significance of RECs to human rights protection. In a looks radically different from 60 years ago when the Uni-
case brought against Uganda, it was contended that Ugan- versal Declaration was adopted. Significant advances have
da violated the EAC Treaty when it re-arrested 14 accused been made since the Second World War in expanding the
persons after they had been granted bail.3 The Court, in normative reach of international human rights law, lead-
2007, held that Uganda had violated the rule of law doc- ing to the proliferation of human rights law at the inter-
trine, as enshrined among the fundamental principles gov- national level. Over the last few decades, however, at-
erning EAC. tention has shifted to the implementation and enforcement
In its first decision on the merits of a case, delivered in of human rights norms, to the development of more se-
November 2008,4 the SADC Tribunal held that it had juris- cure safety nets and to a critical appraisal of the impact
diction, on the basis of the SADC Treaty, to deal with the of the norms. Greater concern for human rights has also
acquisition of agricultural land by the Zimbabwean Govern- been accompanied with greater emphasis on the individ-
ment, carried out under an amendment to the Constitution ual liability of those responsible for gross human rights
(Amendment 17). The Tribunal further found that, as it tar- violations in the form of genocide, crimes against hu-
geted white farmers, the Zimbabwean land reform programme manity and war crimes. The creation of international crim-
violated article 6(2) of the SADC Treaty, which outlaws dis- inal tribunals, including the International Criminal Court
crimination on the grounds of race, among other factors. As in 1998, constitutes a trend towards the humanization of
to the remedial order, the Tribunal directed Zimbabwe to international law. The further juridification of international
protect the possession, occupation and ownership of lands human rights law is exemplified by the establishment of
belonging to applicants and pay fair compensation to those more courts, the extension of judicial mandates to include
whose land had already been expropriated. human rights, and the unequivocal acceptance that all
Promising developments towards subregional human rights are justiciable. With the adoption of the Optional
rights protection have also recently occurred in the Asso- Protocol to the International Covenant on Economic, So-
ciation of Southeast Asian Nations (ASEAN), bringing to- cial and Cultural Rights, there is much clearer acceptance
gether the founding States of Indonesia, Malaysia, Singa- of the principle of indivisibility under international hu-
pore, Thailand and the Philippines. Although ASEAN was man rights law. However, the constant evolution of the
established in 1967, a formal founding treaty (the ASEAN international human rights regime depends greatly on non-
Charter) was adopted only in 2007. The Charter envisages State actors, as is exemplified by their role in advocating
the establishment of an ASEAN human rights body – a for and preparing the normative ground for the recogni-
process that is still underway. tion of the rights of “sexual minorities”. There is no doubt
that the landscape is to undergo dramatic changes in the
Not by States Alone next 60 years.

Advances in human rights are not dependent only on Courtesy UN Chronicle

1. In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc A/49/2005, 21 March 2005.
2. UN Doc. A/RES/60/251 (para 13), 3 April 2006, recommending to the Economic and Social Council to “abolish” the Commission on Human Rights on 16
June 2006.
3. James Katabazi and Others v Secretary-General of the EAC and Attorney-General of Uganda, Reference 1 of 2007, East African Court of Justice, 1 Novem-
ber 2007.
4. Mike Campbell (Pvt) Limited and Others v Republic of Zimbabwe, Case SADCT 2/07, SADC Tribunal, 28 November 2008.