(A)  The Equivocal Experience of the League of Nations

The appearance of human rights in the sphere of international law and organizations is often traced to the era of the League Covenant of 19193 and associated minorities treaties and mandates.4 The minorities treaties, in particular, constituted an important stage in the recognition of human rights standards.

But neither the mandates system nor the minorities regimes were representative: both only applied by way of exception and only to designated territories or groups. The Covenant did not contain a minorities clause, let alone any general statement of rights. Amongst the proposals discarded was this Japanese amendment:

The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord as soon as possible to all aliens [who are] nationals of states members of the League equal and just treatment in every respect making no distinction either in law or fact on account of their race or nationality.5

The idea of universal human rights had to await the Allied wartime planners: a draft bill of rights was prepared as early as December 1942.6 But the idea of universal human rights was at the same time a reaction against special rights for particular groups, and it was agreed aft er 1945 that the inter-war minorities treaties had lapsed.7

(p. 636) (B)  The International Labour Organization (ILO)

Although its work is rather specialized, the ILO, created in 1919, has done a great deal towards giving practical expression to some important human rights and towards establishing standards of treatment. Its agenda has included forced labour, freedom of association, discrimination in employment, equal pay, social security, and the right to work.8 The ILO’s Constitution has a tripartite structure, with separate representation of employers and workers, as well as governments, in the Governing Body and the General Conference. In addition, there are provisions for union and employer organizations to make representations and complaints. This procedure was augmented in 1951 when the ILO Governing Body established a fact-finding and conciliation commission on freedom of association.9

(C)  The Universal Declaration of Human Rights, 194810

In 1948, the General Assembly adopted a Universal Declaration of Human Rights which has been notably influential.11 The Declaration is not a treaty, but many of its provisions reflect general principles of law or elementary considerations of humanity, and the Declaration identified the catalogue of rights whose protection would come to be the aim of later instruments. Overall the indirect legal effect of the Declaration should not be underestimated. It has been invoked, for example, by the European Court of Human Rights as an aid to interpretation of the European Convention onReferences(p. 637) Human Rights (ECHR),12 and by the International Court in relation to the detention of hostages ‘in conditions of hardship’.13

The Declaration is a good example of an informal prescription given legal significance by actions of authoritative decision-makers, and thus it has been used as an agreed point of reference in the Helsinki Final Act, the second of the ‘non-binding’ instruments which have been of considerable importance in practice.14

(D)  The Helsinki Final Act, 1975

On 1 August 1975 the Final Act of the Conference on Security and Co-operation in Europe was adopted in Helsinki.15 It contains a declaration of principles under the heading ‘Questions Relating to Security in Europe’. The Final Act was signed by the representatives of 35 states, including the US and the USSR.

The Declaration is not in treaty form and was not intended to be legally bind-ing.16 At the same time it signified the acceptance by participating states of certain principles, including human rights standards. This significance was recognized by the International Court in Nicaragua v US.17 That was a special context, but the Helsinki process was a significant element in the gradual move to acceptance, on the one hand, of the political status quo in Europe and, on the other hand, of the salience of human rights standards for Eastern Europe. As such it was a precursor to the changes of 1989.18

(E)  Subsequent Declarations

Subsequent important declarations on human rights include the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights on 25 June 1993, which led to the establishment of the Office of the High Commissioner for Human Rights,19 the Beijing Declaration and Programme for Action adopted by the Fourth World Conference on Women on 15 September 1995,20 and the UN Millennium Summit Declaration adopted on 8 September 2000,21 among many others.

(A)  Multilateral Conventions

(B)  Customary International Law

It is now generally accepted that the fundamental principles of human rights form part of customary international law, although not everyone would agree on the identity or content of the fundamental principles. In 1970 the International Court in the Barcelona Traction case saw as included in the category of ‘obligations erga omnes’ the following: ‘the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’.56 This relative indeterminacy is echoed in later declarations, some of them influential in promoting the ‘cause’ of human rights.57

In the Wall opinion, the International Court found that the construction of the wall by Israel, the occupying power, in the Occupied Palestinian Territory, and the associated regime, were ‘contrary to international law’.59In resolving certain questions raised by Israel, the Court had recourse to aspects of customary international law concerning the substance of international humanitarian law.60 It also relied upon considerations of general international law in determining that the 1966 Covenants apply both to individuals present within a state’s territory and to individuals outside that territory but subject to that state’s jurisdiction.61

(C)  Summary

As to the substance of human rights themselves, a wide range of rights is recognized in the core instruments, along with an ever-expanding group of emerging or claimed ‘rights’ with unclear or contested legal status.62Key human rights protected in two or more major instruments are tabled below (see Table 28.1 on p. 644). The groupings are indicative only, as the language and specific formulation of each right differs between texts.

This table suggests that there may be something approaching a ‘common core’ of human rights at the universal and regional levels. But it also suggests that any such common core is partial and imperfect—and it hides altogether the many differences in the articulation of the various rights in the various treaties. The fact remains that governments have chosen to develop and articulate human rights principles at the international level largely by means of multilateral treaties, individually negotiated. It is those treaties which for most practical purposes constitute the international law of human rights.63References(p. 644)

The UN Charter contains various references to ‘human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’. These general and to some extent promotional provisions have constituted the background to the appearance of a substantial body of multilateral conventions and practice by UN organs. By 1966, at the latest, it was possible to conclude that in terms of the Charter the principle of respect for and protection of human rights on a non-discriminatory basis had become recognized as a legal standard.64

References(p. 645) There is no great gulf between the legal and human rights of groups, on the one hand, and individuals, on the other. Guarantees and standards governing treatment of individuals tend, by emphasizing equality, to protect groups as well, for example, in regard to racial discrimination. In turn, protection of groups naturally encompasses protection of individual members of those groups; some rights attaching to individuals qua group members are only exercisable in community with other members of the group.65

(A)  Non-Discrimination

International law contains a legal principle of non-discrimination on grounds of race, articulated in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).66 This principle is based, in part, upon the UN Charter, especially Articles 55 and 56; the practice of organs of the UN (e.g. General Assembly resolutions condemning apartheid); the Universal Declaration of Human Rights; the International Covenants on Human Rights; and the regional human rights conventions.67 In 1970 the International Court in Barcelona Traction referred to obligations erga omnes as specifically including ‘protection from slavery and racial discrimination’.68 There is also a legal principle of non-discrimination in matters of sex, based upon the same set of multilateral instruments,69 together with the widely ratified Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979.70

The principle of equality before the law allows for factual differences, such as age, and is not based on mechanical conceptions of equality.71 But any distinction drawn must have an objective justification; the means adopted to establish different treatment must be proportionate to the justification for differentiation; and there is aReferences(p. 646) burden of proof on the party seeking to invoke an exception to the equality principle.72 ICERD Article 1(4) is of particular interest, making it clear that differential treatment in the form of special measures necessary to secure the advancement of certain disadvantaged groups is not racial discrimination in the sense of the Convention.73 The Committee on the Elimination of Racial Discrimination clarified the meaning of ‘special measures’ in its General Recommendation XXXII.74

The Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, adopted by the UN General Assembly on 25 November 1981, completes the picture.75

In a significant determination in 2001 the European Court of Human Rights held that discriminatory treatment as such could be categorized as degrading treatment within the terms of Article 3 ECHR.76

(B)  Self-Determination77

The idea of collective or group rights became prominent in connection with the principle of self-determination, progenitor of the category of so-called ‘peoples’ rights’.78 Self-determination is articulated variously as political principle, legal principle, and legal right.79 It has been understood as the right of peoples under colonial, foreign, or alien domination to self-government,80 whether through formation of a new state, association in a federal state, or autonomy or assimilation in a unitary (non-federal) state.81 In different contexts, however, self-determination can mean different things,References(p. 647) and there is no universally accepted definition.82 On a general level, it can be defined as ‘the right of a community which has a distinct character to have this character reflected in the institutions of government in which it lives’.83 The International Court has described self-determination as the ‘need to pay regard to the freely expressed will of peoples’,84 but there has been wide disagreement over the meaning of ‘peoples’, not least in the context of indigenous and minority claims to self-determination.

Common Article 1(1) of the ICCPR and ICESCR upholds the right of ‘all peoples’ to self-determination, and Article 2 of the Arab Charter contains similar wording. The African Charter on Human and Peoples’ Rights recognizes the ‘unquestionable and inalienable right to self-determination’ of all peoples (Article 20(1)). The advisory opinion of the Court in Western Sahara confirms ‘the validity of the principle of self-determination’ in the context of that dispute.85 In the Wall opinion the Court recognized the principle of self-determination as one of the rules and principles relevant to the legality of the measure taken by Israel: the effect of the wall, in conjunction with the settlement policy, was to impair if not to preclude the exercise of the right of self-determination of the people of Palestine in relation to the territory of Palestine as a whole.86

The development of the principle of self-determination in practice has led to a pronounced distinction between the colonial and non-colonial context, reflecting a distinction between full (‘external’) self-determination and qualified (‘internal’) self-determination.87 The question of internal self-determination, and the possibility of remedial secession, remain controversial.88

(C)  Rights of Minorities89

The need to protect the rights of racial, linguistic, and religious minority groups within states has been recognized in a general way since the minorities treaties of the interwar period,90 but there is still no agreed definition of what constitutes a ‘minority’ in international law,91 and the question of legal personality for minority groups as suchReferences(p. 648) is fraught.92 States have traditionally been wary of recognizing rights and status of minority groups within their territory, for fear of claims to secession. The HRC has affirmed that minority rights are different from the right to self-determination, and their enjoyment should not prejudice states’ sovereignty and territorial integrity.93

The only multilateral treaty dealing specifically with minority rights is the European Framework Convention for the Protection of National Minorities, adopted by the Council of Europe in 1994.94 The Convention articulates a comprehensive set of principles for the protection of national minorities and persons belonging to those minorities. It covers individual rights as well as provisions directed specifically at protecting the existence and identity of minority groups as such.95 The decision to adopt the Convention, rather than a proposed additional protocol to the ECHR,96 attracted criticism. The task of monitoring implementation of the treaty was thus assigned to an Advisory Committee of the Council of Europe, not the Strasbourg Court. In practice, however, the Advisory Committee has made a contribution to the development and enforcement of Convention rights, and states clearly treat the Convention as a legal commitment, despite the general, framework character of some of its provisions.97

The position under general international law is rather different. The key text is ICCPR Article 27 which protects the right of members of ethnic, religious, and linguistic minorities, in community with other members, to enjoy their own culture, profess and practise their own religion, and use their own language; this is poised between an individual and a collective rights guarantee, but emphasizes the individu-al.98 The interpretative potential in Article 27 has been tested to an extent in individual complaints before the HRC.99

In 1992 the General Assembly adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. The Declaration was intended to strengthen the implementation of human rights relating to minorities, based on the principles of non-exclusion, non-assimilation, and non-discrimination.100References(p. 649) It elaborates on the principle of protection of identity under ICCPR Article 27, and moves towards promotion of identity.

(D)  Rights of Indigenous Peoples101

The UN Declaration on the Rights of Indigenous Peoples was adopted in 2007 by a large majority of the General Assembly.102 The Declaration resulted from a draft ing process that lasted more than 20 years, and was noteworthy for the level of participation of indigenous groups and their NGOs.103 This also produced changes within the UN structure, with the creation of the UN Permanent Forum on Indigenous Issues as an advisory body to the Economic and Social Council;104 the extension of the mandate of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples;105 and the creation of the Expert Mechanism on the Rights of Indigenous Peoples, subsidiary to the Human Rights Council.106

Previously the only international instruments addressing indigenous rights as such107 were two ILO Conventions with limited participation, characterized by markedly state-driven perspectives.108 The Declaration represents a shift away from that approach, promoting a more inclusive and consultative relationship with indigenous peoples. Perhaps its most significant feature is the proclamation in Article 3 that indigenous peoples have the right to self-determination. Despite the wording of ICCPR/ICESCR Article 1, recognizing the right of allpeoples to self-determination, for a long time states resisted recognizing indigenous claims.109 The HRC refuses to entertain claims for violations of Article 1, taking the view that inherently collectiveReferences(p. 650) claims cannot be brought under the individual complaints procedure of the First Optional Protocol. The Committee has generally treated indigenous claims as coming within the minority rights protections of Article 27 instead.110 The explicit recognition of indigenous peoples’ right to self-determination in the Declaration is a significant change—though achieved on the ‘understanding’ that self-determination for this purpose does not equate to a right to secede, as distinct from negotiating the terms of indigenous engagement with the state.111

Besides self-determination, the Declaration also affirms a range of individual and group rights of importance to indigenous peoples, including equality and freedom from discrimination,112 cultural identity and integrity,113participation in decision-making,114 autonomy and self-government,115 and traditional lands and natural resources.116 The term ‘indigenous peoples’ is, however, left undefined.117 As a General Assembly resolution, the Declaration does not impose obligations on states, but its symbolic weight should not be underestimated.118

(E)  Other Collective Rights

The notion of rights being enjoyed by groups of persons collectively, rather than as individuals, remains controversial. A distinction should be made between rights attaching to individuals because of their status as members of a group, and rights attaching to the group as such, which individuals can in practice only enjoy inReferences(p. 651) community with others. The instruments on minority and indigenous rights contain examples of both.

Beyond the specific rights of minorities and indigenous peoples, international law recognizes some other collective rights, in particular, a people’s right to freely dispose of its natural wealth and resources and not to be deprived of its own means of subsistence (ICCPR/ICESCR Article 1(2)). Examples of other putative collective rights include the right to development,119 and the right to culture;120 by now, however, we are approaching the useful limits of law if not of language.

(A)  Territorial and Personal Scope of Human Rights Treaties

International human rights instruments typically do not define the precise territorial and personal scope of the human rights protections they contain. ECHR Article 1 provides that the parties shall secure the rights and freedoms defined in Section 1 of the Convention ‘to everyone within their jurisdiction’. A similar reference to ‘jurisdiction’ appears in Article 1 of the American Convention on Human Rights. The African Charter is silent on the issue. Other instruments refer to territorial jurisdiction but with no mention of the personal scope of the rights they protect. The question is whether states parties to human rights treaties are bound to apply their protections extra-territorially, including to non-nationals. This arises particularly in the context of armed conflict and belligerent occupation.121

The European Court of Human Rights has had to consider the scope of ECHR Article 1 on a number of occasions. Before 2001, it was reasonably settled that ‘jurisdiction’ in Article 1 is primarily territorial,122 but that in some cases, acts of states parties performed or producing effects outside their territories might also constitute an exercise of jurisdiction.123 In particular, a line of cases involving the Turkish occupation of northern Cyprus had established that where a state party exercises effectiveReferences(p. 652) control of an area outside its national territory as a consequence of military action, the fact of that control triggers the Article 1 obligation to secure Convention rights and freedoms there.124 Another recognized exception to territoriality is the personal model of extraterritorial jurisdiction, arising when state agents exercise authority and control over individuals outside the national territory.125

Banković v Belgium126 arose out of the airstrike under NATO auspices on the Radio Televizija Srbije building in Belgrade during the Kosovo crisis in 1999. The victims or their representatives brought claims against 17 respondent states, members of NATO, and parties to the ECHR. The Court found that the case fell beyond the scope of Article 1 and was inadmissible.127 The victims and the applicants were located in the territory of the Federal Republic of Yugoslavia (FRY), outside the territorial jurisdiction of any of the respondent states.128 In this way the Court appeared to limit the Convention’s extraterritorial application to those areas within the regional legal space (espace juridique) of the Convention, the territories of the members of the Council of Europe.129

Banković has been a source of some confusion in the case-law,130 notably in the context of the invasion and occupation of Iraq in 2003. In Al-Skeini v UK relatives of six Iraqi civilians killed in incidents involving British soldiers in south-east Iraq alleged that the British authorities had failed adequately to investigate the deaths, which occurred during the period in which the UK was an occupying power in that region.131 The House of Lords held there was ‘jurisdiction’ only in the case of one person, held in a detention facility,132 but the ECtHR found that there was a sufficient jurisdictional link for Article 1 purposes in all six cases.133 It ultimately found a violation of the procedural duty to investigate the deaths, pursuant to Article 2, in five cases.134

The Court emphasized that determining whether or not Article 1 is satisfied was a matter of considering the circumstances of each case.135 It did not make a finding as toReferences(p. 653) whether or not the UK had ‘effective control’ of the area in question. Instead, it based its decision on a fresh articulation of the ‘state agent authority’ exception to territoriality recognized in previous cases: the exercise by state agents of physical power and control over the person in question.136 It was relevant that the applicants’ relatives were killed in the course of security operations while the UK was responsible for the exercise of some of the public powers in that region;137 this distinguishes Al-Skeini from Banković. But if Al-Skeini cannot be said to overrule Banković, it qualifies it in certain respects. First, jurisdiction under Article 1 is not necessarily restricted to the regional espace juridique of the Convention.138 Second, the state exercising jurisdiction has an obligation to secure the rights and freedoms that are relevant to that individual’s particular situation; in that sense, the rights and obligations in the Convention can be ‘divided and tailored’.139

The HRC has observed that ICCPR Article 2(1) requires states parties to ensure and respect the Covenant rights of ‘anyone within their power or effective control, even if not situated within the territory of the state party’, and that this requirement is not limited to citizens; it also includes situations where the state is acting outside its own territory and situations of armed conflict.140

The International Court has also considered the issue. It concluded in the Wall opinion that Israel was bound to apply the provisions of human rights instruments to which it was a party in the Occupied Palestinian Territory, observing that its position was consistent with that of the HRC.141 The Court reiterated its finding that international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory, particularly in occupied territories’ in respect of Uganda’s occupation of the Congolese province of Ituri.142