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Of course the story of human rights does not begin with
the adoption on 26th of June 1945
of the United Nations Charter.
The story of human rights really began
with the Enlightment period and those of you
who are familiar with the history of the French Revolution in 1789
or, indeed, with the history
of the independence
of the United States of America, declared in 1776,
the adoption of the Federal Constitution in 1787,
and the Bill of Rights appended to the federal constitution
in 1791, you will know that
of course, human rights were very much at the center
of these revolutionary processes. Indeed in the
19th century, many liberal constitutions adopted
during that period, particularly the years
1830 - 1848 on the European continent,
were referring very specifically to
human rights and included human rights within their constitutions.
But human rights entered in international law
in 1945 really, and
this may be explained if we look back at the
the history of the Second World War.
This is a picture showing
the US president Franklin Delano Roosevelt together with
the UK Prime Minister Winston Churchill meeting on the
HMS Prince of Wales, in August 1941
when they adopted a well known document called
the Atlantic Charter. And the Atlantic Charter describes
essentially the 8 key principles
on which they believed the
new world order that would result from the Second World War
should be established. Amongst these key principles
they mentioned the self-determination of peoples
and they mentioned that all men
in all lands may live out their lives in freedom from fear
and want. So, this idea that human rights should be at the core
of the reconstruction following the Second World War
was already present in 1941. And the
Atlantic Charter adopted by Roosevelt and Churchill
was then approved by the Allies
in the well known United Nations Declaration
of the first of January 1942.
So it is probably unsurprising that
when the delegates met in San Francisco to prepare the United Nations
organization's charter
they had a concern for human rights that was very explicit.
In fact the purposes of the United Nations listed in Article 1
of the Charter include the promotion
and encouragement of respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language
or religion.
And in the course of these discussions preparing the UN Charter
there were many references to human rights as part of
what international economic and social cooperation
should achieve. Look at article 55
of the UN Charter. It mentions
amongst the tasks of the United Nations
the promotion of universal respect for and observance of human rights and
fundamental freedoms
for all without discrimination, without distinction as to race, sex,
language or religion. And article 56 of the Charter
says that all members of the United Nations pledge
to take joint and separate action in cooperation with the organization
for the achievement of these purposes amongst which
human rights. In order terms the UN Charter itself
imposes on the members to work towards the fulfillment
of Human Rights. What is of course
perhaps strange is that the UN Charter does not define itself
what human rights are, does not provide any
catalog of human rights. Now in the course of the discussions having led
to the establishment of the UN Charter,
some such proposals were made to include a catalog
of humain rights in the Charter itself and particularly I should
mention the work, in this regard, of
the representative of Panama to the conference
Ricardo Alfaro. Ricardo Alfaro had been the president of Panama in
1930 - 1932. He later
was a judge at the International Court of Justice
and at the San Francisco conference, he put forward a proposal
inspired by work he had done with the American Law Institute
that had adopted in 1944
a statement on essential human rights, and the proposal was to include
in the UN Charter a list of human rights and fundamental freedoms
that the UN should seek to promote and
ensure respect for. That proposal was
ultimately not successful
in part because the delegates felt that it was
going to be too much of a diversion and perhaps
too divisive an enterprise and they wanted to
finalize the work on the UN Charter sooner
rather than later. So what was decided is that
the definition of human rights would be
the first task of the UN once
the Charter would enter into force.
And, indeed, the Charter establishes
amongst other organs of the UN
an Economic and Social Council that was
established, inter alia, to make
recommendations for the purposes of promoting respect for and observance of
human rights and fundamental freedoms for all and to prepare draft conventions
that the General Assembly of the UN would then have to approve
and the Economic and Social Council
ECSOSOC was to work inter alia
by establishing thematic commissions, working groups -- if you wish -- of diplomats
working on different thematic issues
including which human rights were explicitly mentioned in Article 68
of the UN Charter.There is a specific reference to the establishment
of a commission for the promotion of human rights
and so when the UN Charter was adopted and
entered into force, very swiftly
the Economic and Social Council (ECOSOC)
worked towards implementing this
Article 68 of the Charter and it established a Commission on the Status of Women
in June 1946, a body where
recommendations were prepared on
the improvement of the situation of women. It is in the Commission on the Status of Women
that
the international convention on the elimination of all forms of
discrimination against women
would be adopted in 1979
. But most important
the Economic and Social Council established
the Commission on Human Rights and that was
for sixty years until its replacement
by the Human Rights Council that was the body within the UN
where human rights matters were discussed.
The Commission on Human Rights was a body
of government delegates, high-level diplomats
Initially, a relatively small number,
18 states were represented at the beginning
in the Human Rights Commission but, later,
when the UN expanded its membership, particularly after the
decolonization period of the 1950s and 1960s
the membership of the Commission expanded
and it had 53 members when it was
holding its final session in 2006.
The Commission on Human Rights
was the body
where human rights were to be discussed, deliberated
and the system was that
the Commission on Human Rights was to adopt certain texts
certain recommendations that would then be passed on to the ECOSOC, the
Economic and Social Council and then would be approved
and by the General Assembly and opened
as regards treaties to ratification by Member States
But the Commission on Human Rights had a very key role to fulfill
it was supported in this regard by
a body of independent experts appointed
in their personal capacity, called
the Submission on the promotion and protection of human rights
although it was called, until 1999, the Sub-Commission on prevention of discrimination
and the protection of minorities.
Now, it is within the Human Rights Commission
that the most important instrument, that was really
the leading document
beginning 'the great adventure of the United Nations in the area of human rights' as it has
been called
was adopted. And that document was, of course, the
Universal Declaration of Human Rights adopted
just before midnight on the 10th of December
1948 by the General Assembly adopted by
by 48 votes in favor
8 states abstained
(the United Nations at that time was composed of 56 member states).
And the abstaining states were South Africa
that had just recently inaugurated
its apartheid policy and therefore was opposed to a declaration that would
state
that racial discrimination should be prohibited.
Another country that abstained was Saudi Arabia opposed to the
right to choose and change one's religion.
And the USSR and its satellite states
who feared that human rights would be a pretext
to interfere with their domestic affairs.
But apart from these 8 abstentions, there was no vote against
the declaration and we may say therefore
that the declaration was adopted pretty much by consensus
in Paris in 1948.
Now the declaration is a hugely important
instrument adopted by the
Commission on human rights. It was really
in the 30 articles,
the summary of what international human rights
would be in the next years.
And although later many treaties were adopted
at UN level in the area of human rights,
all human rights in many ways are summarized
in those 30 articles.
Now the declaration was prepared within the
Commission on human rights by a working group established
to that effect. There was another working group working on monitoring
mechanisms, and there was
yet another working on a new
treaty, a convention
protecting human rights in the form of a legally binding instrument,
but this working group of the human rights Commission headed
by Eleonor Roosevelt - who was the widow
of late president Franklin Delano Roosevelt
who had died early in 1945 -
that group
managed to achieve a consensus across its members
swiftly enough for the declaration to be presented
to the General Assembly after just a couple of years of work.
The group was also
including René Cassin, representing
the French government.
He was a minister of president Charles de Gaulle at the time.
To a large extent Eleanor Roosevelt
and René Cassin were the leading figures within this group that drafted
the Universal Declaration on Human Rights.
The document that was adopted
on 10th of December 1948 had been prepared
on the basis of a draft that was
proposed to the working group by
this Canadian
director of human rights within the United Nations,
head of the directorate of the human rights at the time,
a young Canadian international law professor called John Peter Humphrey.
And John Humphrey
basically prepared the work of the Commission
by comparing how human rights were protected
under domestic constitutions across the world.
He included the Magna Carta, the Bill of Rights appended
to the US Federal Constitution and the Déclaration des Droits de l'Homme
et du Citoyen
adopted
in France on
14th of August 1789
and he compared all these documents
trying to identify the common denominator across them
that would be acceptable for states
to adopt as part of a universal declaration
of human rights. It's interesting to notice because
he provides already indication
of the specific nature of human rights that are
neither pure international law nor
just reducible to one part of
domestic constitutional law. There are really a hybrid between the two.
They are not classic international law but
they of course do not belong just to constitutional law
anymore. And this hybrid nature of human rights
is part of what explains how they have been developed
in recent years. And we will return to this point of course
in the remainder of this course.
Now it is important to note that
the Universal Declaration of Human Rights was
also important because it listed,
in its 30 articles, both civil and political rights
and economic, social and cultural rights.
And the idea of interdependence and indivisibility
and equal importance of all human rights,
whether civil and political or whether economic, social
and cultural, was very much present in the discussions that led
to the adoption of the Universal Declaration of Human Rights.
And indeed, this was faithful to the
view, to the vision of the late US president
Franklin Delano Roosevelt.
Franklin Delano Roosevelt, although elected originally in 1932
on the relatively conservative, fiscally conservative platform,
became a promoter of economic and social rights
as a mean to address the economic crisis that US were facing
in the1930s.
He lead the effort of the US
to strengthen the welfare state
at federal level. This picture here shows him signing the social security act on 14th of August
1935. And this is just one
of the very important pieces of legislation
that Roosevelt adopted
for the United States as part of this
welfare state being established
in the US. And so this philosophy that
human rights required not only that people be free from fear
but also that they be free from want
was an idea that was very central
to the Universal Declaration of Human Rights. In fact
when Franklin Delano Roosevelt presented
his State of the Union address to the US Congress
in 1944, he made a reference to what he called a "second bill of rights" which was
a metaphor to say that
the rights of the Bill of Rights attended
to the federal constitution adopted in US were incomplete
and that there was the need to adopt legislation
to protect the right to food,
the right to housing, the right to social security for example
for people to be protected from
economic disempowerment.
The argument of Roosevelt was essentially that
economic and social security
were key to avoid people being tempted
by political extremism. "People who are hungry
and out of the job are the stuff of which
dictatorships are made" is one famous sentence
that president Roosevelt uses in this State of the
Union address. So the Universal Declaration of Human Rights was really
very much
in the continuity of this
idea of interdependence and indivisibility.
However it's important to note that already in 1948,
when the Universal Declaration of Human Rights was adopted,
there was an understanding that economic and social rights
were of a different nature than
civil and political rights. Of course they were equally important.
Of course the two sets of rights were considered to be
indivisible and interdependent but nevertheless
economic and social rights were distinct
and may call for a different type of
supervision mechanism. Look at the article
22 of the Universal Declaration of Human Rights.
It is the first provision of the Declaration that
refers to economic and social rights. This
article 22 is on the right to social security.
But it has actually a general
reference to economic and social rights and it says the following.
It says "everyone as a member society has a right to social security
and is entitled to realization through national efforts
and international cooperation and in accordance with the organization
and resources of each state, of the economic, social
and cultural rights indispensable for his dignity
and the free development of his personality".
That reference to the right to social security,
as requiring international cooperation,
as requiring at progressive realization
in accordance with the organization
and resources of each state, is in fact a statement
that economic and social rights are of a different kind,
are of a different nature, require time to be implemented
require budgetary commitments and require
international cooperation for them to be effectively realized.
The reference to the resources of each state in particular,
was an allusion to the fact that developing countries
could not be expected to protect the right to food,
the right to housing, the right to education the right to health,
like rich countries
could be expected to do.
So the level of development or the degree of development of each state
was a relevant factor to be taken into account
in assessing whether states are doing enough to implement
economic and social rights. And this idea
is an idea that will remain in international
human rights
really for the next 60 years.
It is only in 2008 that
one might say the bridge was completely
built between civil and political rights on the one hand,
and economic and social rights on the other hand.
The Universal Declaration of Human Rights
lead to a number of developments
at UN level.
In fact over the years the Declaration was
implemented through a range of instruments
That protects human rights
under the chapeau of the United Nations
9 core human rights treaties were adopted
over the years beginning with the International Convention
on the elimination of all forms of racial discrimination
adopted on the 21st of December 1965.
It is a bit paradoxical that
this International Convention on the elimination of all forms of racial
discrimination
was the first treaty to be adopted. And it was adopted very swiftly because
the newly decolonized countries,
who had recently gained independence in the 1960s
particularly in Africa,
very much insisted on racial discrimination,
the elimination of racial discrimination, being at the top of the UN
agenda. And so they pushed for this
convention to be adopted very quickly.
And they had at the time
acquired sufficient importance
in UN membership to push for this decision to be adopted.
But the instruments that were really the immediate continuation
of the Universal Declaration of Human Rights were 2 covenants
adopted finally on the 16th of December 1966 :
The International Covenant
on civil and political rights and the International Covenant
on economic, social and cultural rights.
Let us go through some of these instruments very briefly
to understand the importance that they've acquired
in recent years. Firstly the first
UN human rights treaty to be adopted, that was
really the model
for all the other UN human rights treaties,
was the International Convention on the elimination of all forms of racial
discrimination.
It has today 176 States parties, it's a relatively
widely ratified instrument and you see in this map
the States parties to the convention.
The States that are
in dark blue on this map
are the States that have accepted the rights to
individual communications being filed with the
the body of independent experts in charge of supervising compliance with
this convention,
this is the CERD committee - the Committee on the Elimination of Racial
Discrimination.
A significant number of countries have accepted
this right of individual victims of racial discrimination
to file communications with the
the CERD committee. But other States have ratified this convention, are
bound by this convention,
without having accepted this right to individual communication
and you see this map that
identifies these States in this slightly
lighter blue here on this map.
As I said,
the Universal Declaration of Human Rights of 1948
was initially a political declaration
meant to have primarily a symbolic value,
but immediately work began on
implementing the declaration in the form of binding treaties.
And the two treaties that were the
immediate follow-up to the declaration
with two covenants adopted in 1966.
Symbolically it important that these convenants were adopted
on the same day, on the 16th of December 1966,
although in 1951 it had been decided
that two separate instruments should be adopted,
one for economic, social and cultural rights,
the other for civil and political rights, not because
some rights were more important than the others, not because
States were challenging the idea that
all rights were equally important and were interdependent and
indivisible. Rather the idea was economic, social and cultural rights were rights
of a different nature,
calling for a different type of procedure,
a different supervisory mechanism and therefore
should be dealt with in a separate instrument resulting in the UN
General Assembly
at the request of the
Commission on Human Rights really and
the Economic and Social Council to adopt a resolution
asking for two separate instruments
to be prepared, that finally after some
18 years of
discussions, being adopted in 1966.
Now the two covenants,
the Covenant on Economic, Social and Cultural Rights -
the ICESCR,
and the Covenant on Civil and Political Rights - the ICCPR,
were mostly adopted
simultaneously by States,
ratified by States together.
There were some exceptions to this but that explains why
the two covenants entered into force roughly at the same time.
The International Covenant on Economic, Social and Cultural Rights entered into force
in January 1976.
Today it has 161
States parties, which is a very significant
membership although it is not
quite universal yet. And you see on this map
in the dark blue the States that have ratified the covenant,
in light blue the States that have only signed
the covenant but have not ratified it,
and in blank the States that have taken
no action whatsoever to move towards
ratification of the Covenant. Now
the Covenant on Economic, Social and Cultural Rights only recently
has been complemented by
Optional Protocol. That shall give
to the committee on Economic Social and Cultural Rights
the new task, the new competence
to receive individual communications
by which individual victims of violations of Economic, Social and Cultural Rights
can complain
that they have been victims of such violations
allowing the committee to adopt decisions to
express views as to whether or not there has been
a violation of their rights.
Of course this is a very recent instrument, it was only adopted
on 10th of December 2008,
symbolically, interestingly
exactly 60 years after the Universal Declaration of Human Rights
was adopted. And because it's a still recent
instrument, it has only been ratified by relatively small number of States,
11 States have ratified this instrument
on 1st of November 2013. But gradually
this Optional Protocol certainly shall attract
a larger membership and the Committee on Economic, Social and Cultural Rights
shall be in a position to develop
a case law based on these communications
that it shall receive. Now the other covenant
adopted at the same time as the Covenant on Economic, Social and Cultural Rights
was a covenant on civilian and political rights.
The ICCPR, that entered into force just a few months after the
International Covenant on Economic Social and Cultural Rights,
the ICCPR entered into force on 23th of
March 1976 and it has 167
States parties, slightly more then ICESCR
in
November 2013.
China for example has ratified
the International Covenant on Economic, Social and Cultural Rights
but not the International Covenant on Civil and Political Rights
and the situation is the exact opposite for the United States
that has ratified the ICCPR but has not ratified
the ICESCR on
economic and social rights. The International Covenant on Civil and Political
Rights
also has an Optional Protocol
allowing the Human Rights Committee - the Human Rights Committee is the body of
independent experts trusted with
supervising compliance with the ICCPR
under the covenant on Civil and Political Rights,
and the Optional Protocol allows the Human Rights Committee to receive
individual communications emanating from victims
of violations of the civil and political rights
recognized under the ICCPR. Now
that Optional Protocol was adopted in 1966 at the very same time that
the International Covenant on Civil and Political Rights
itself was adopted. And so unsurprisingly
it has been ratified much more widely than the Optional Protocol to the
ICESCR. 115 States parties
have accepted this
Optional Protocol to the ICCPR.
Other conventions may be mentioned although I will not go to the full list of them,
this would be
perhaps too long to do, but to give you some examples : the Convention on
the
elimination of all forms a discrimination against women
was adopted in 1979, entered into force
quite rapidly after this in 1981
and it has today 187 States parties, it is a very
widely ratified convention although
the most ratified of these is the
Convention on the Rights of the Child which I'll mention in
a minute. The Convention on the elimination of all forms of
discriminations against women usually refered to
by its acronym the CEDAW convention,
is a convention that also has been
complemented more recently in 1999
by Optional Protocol providing the CEDAW committee -
the committee on the elimination of all forms of discrimination against women -
to receive individual communications
denouncing violations of the
Convention. This Optional Protocol,
in force since 2000, has today
104 States parties and
you have here the map describing
the States that have accepted this competence
of the CEDAW Committee.
I mentioned already the Convention on the Rights of the Child which is
the most widely human rights instrument,
the most widely ratified human rights instrument. It has
193 States parties
today. The only States that have not
ratified the Convention on the Rights of the Child are the United States of
America
and Somalia, that is without
a real government since 1991,
But apart from these two States all the
other States, all the other members
of the UN have ratified the Convention
on the Rights of the Child which
therefore has acquired a
universal acceptance across States.
Now of course these core
UN human rights treaties, 9 in number,
are important. They have some common characteristics
that explain why they're usually discussed
together and dealt with together. All these human rights treaties that I've
mentioned,
the CRC - the Rights of the Child,
and Convention on the elimination of all forms of distributions against women,
the two covenants
on Civil and Political Rights and on Economic Social and Cultural Rights,
and of course the convention on the elimination of all forms of racial
discrimination,
all these core UN human rights treaties
establish expert
bodies, human rights treaty bodies
as they are called, composed of independent experts
that monitor compliance. And they do so by receiving
reports from States on which they adopt
some concluding observations or comments
They also adopt general comments or general recommendations, they adopt
in some cases, when they have the competence to do so, they adopt
decisions or views
on the individual communications that they receive
when victims of violations denounce the violations that
they have been inflicted.
And
these core UN human rights treaties therefore follow
a common structure. But of course within UN there are other instruments that are
relevant to human rights, for example in 1948
the Convention on the Prevention and Punishment of the crime of genocide
was adopted, very important instrument
that led to a very interesting advisory opinion
of the International Court of Justice on the 28th of May
1951 - we will discuss this in context of
reservations. We have a convention on the non
applicability of statutory limitations towards crimes and crimes against humanity.
We have an international convention on the suppression
and punishment of the crime of apartheid adopted
in 1973. So
the UN human rights treaties
stricto sensu, the 9 core UN human rights treaties
are not the only instruments that are relevant to human rights
but they are the most important and these are the instruments on which
this course shall mostly be focused on.
Let me close
by emphasizing the distinctions between
the International Covenant on Economic Social and Cultural Rights
and the International Covenant on Civil and Political Rights, the two
covenants that implemented in treaty form
the Universal Declaration of Human Rights of 1948.
It's important to note that these
two treaties are different
because of the mechanisms
for their supervision that were established
under respectively the ICESCR and the ICCPR
based on the view of States that
civil and political rights could be immediately
enforced by courts and by independent experts -
these were rights considered to be justiciable if you wish -
when economic and social rights were considered
not to present these characteristics.
Economic and social rights were considered to be
subject only to progressive realization.
They required time to be implemented,
they required budgets to be invested, they
could only be implemented thanks to international
assistance and cooperation. And for this reason
the ICCPR established a Human Rights Committee, a body of
independent experts to monitor compliance, and there was no such
body of independent experts initially
monitoring compliance with the
International Covenant on Economic Social and Cultural Rights.
In fact the Committee on Economic Social and Cultural Rights was only established
almost 10 years after the
ICESCR entered into force, in 1985,
because the Economic and Social Council realized that it was
unable to really process adequately the reports
submitted by States describing
how they were implementing the ICESCR.
And so the Ecosoc established the Committee on Economic Social and Cultural
Rights by
resolution 17/1985,
modeled on the model of the human rights committee
establishing this new body
to supervise compliance with the
ICESCR.
This also explains why in the ICCPR
there is a reference, in article 2 paragraph 3, to the duty of States
to provide
effective remedies to individuals whose
civil and political rights would be violated when this
provision is not found in the ICESCR
although the Committee on Economic Social and Cultural Rights has since
adopted various
general comments emphasizing the need
to establish effective remedies for individuals victims of
violations of their economic and social rights, that is not something
that was stated as such in the ICESCR.
I already mentioned that the ICCPR
was complemented already in 1966
with an Optional Protocol providing for the possibility of individual
communications being filed
with the Human Rights committee. A contrario, we had to wait until
the 10th of December 2008 for the Committee on Economic Social and Cultural Rights
to receive the same competence under the
International Covenant on Economic Social and Cultural Rights
under the newly adopted Optional Protocol to that covenant
adopted again in 2008.
The rights under the ICCPR are considered to be
immediate; the rights under the ICESCR
are considered to be subject to progressive realization
and we will discuss in great detail article 2 paragraph 1
of the ICESCR that defines
what progressive realization means and
under which conditions the resources available to each State
should be taken into account in assessing
whether the State is moving swiftly enough towards the realization
of economic and social rights. Economic and social rights
are subject to the availability of resources
under the ICESCR and they
depend for the realization on international assistance and cooperation
and in these two dimensions, in these two aspects
they are different from civil and political rights.
To a large extent we may say that, over the past
65 years, since the Universal Declaration of
Human Rights was adopted, the history of international human rights
was one that aimed
to bridge the gap between these two sets of rights
and to a large extent that is the most important development we have
witnessed
over the past 65 years and it is
in parts what will be described in this course
on international human rights.