International human rights law
| Author | John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld |
| Pages | 585-687 |
585
CHAPTER 9
INTERNATIONAL HUMAN RIGHTS LAW
As a general rule, international law historically regarded a state’s treatment of individuals
within its borders as a purely domestic matter, even though states have long been obliged
to treat specific categories of individuals in particular ways. Take, for example, the protec-
tions for religious minorities included in the Treaty of Westphalia, discussed in Chapter
1, or the abolition of slavery and the slave trade in the nineteenth and early t wentieth
centuries.1 Nevertheless, arguably the single greatest revolution in international law since
its emergence has been the recognition extended since World War II to the rights of the
individual, resulting in an enormous body of international human rights law requiring
states to act (or not act) in particular ways in their relations with individuals generally.
In this chapter, we provide an overview of international human rights law, with a focus
on treaties as the source of international legal obligation. We begin by looking at the key
precursors to today’s vast international legal framework for the protection of human rights,
notably the protection of minorities; the treatment of “aliens” (i.e., foreign nationals); early
international labour law; and international humanitarian law. We then focus on how inter-
national human rights protections have been codified in treaties developed under the aus-
pices of the United Nations (UN) and several regional organizations. We also examine
some of the specific human rights guarantees that have evolved since the end of World
War II, as well as the various monitoring and compliance mechanisms that have been put
in place to foster domestic implementation of, and state respect for, those guarantees.
A. KEY PRECURSORS TO THE INTERNATIONAL HUMAN RIGHTS REGIMES
1) Protection of Minorities
Even in early international law, various treaties included provisions requiring states par-
ties to protect certain minorities within their borders. In the early modern period, these
minorities were often religious rather than ethnic in nature. Examples include Protestants
1 See International Slaver y Convention, 25 September 1926, 60 LNTS 253, Can TS 1928 No 5, in force 9
March 1927, later amended by the Protocol amending the Slaver y Convention, 23 October 1953, 182
UNTS 51, Can TS 1953 No 26, in force 7 December 1953, and expanded upon by the Supple mentary Con-
vention on the Abolition of Slave ry, the Slave Trade, and Institutions and Practices similar to Slavery, 7
September 1956, 266 UNTS 40, Can TS 1963 No 7, in force 30 April 1957. For an earlier bilateral example,
see Treaty Between Gre at Britain and the United States, to settle and d efine Boundaries between th e
Possessions of Her Britannic Majesty in N orth America, and the Territories of the Unite d States; for the
final suppression of the African Slave Trade; and for the Giving up of Cr iminals and Fugitives from Justice
in certain cases, 13 Octobe r 1842, 30 British State Paper s 360, in force 13 October 1842.
586 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
in the Westphalia treaty system and Christians in treaties between European powers and
the Ottoman Empire in the nineteenth century. In the twentieth century, the League of
Nations system included a number of treaties protecting religious, ethnic, and linguistic
minorities in Europe, particularly those found in regions of central and Eastern Europe
that had been part of the multinational Austro-Hungarian Empire prior to the end of
World War I. In the wake of that conflict, the Allied powers redrew many national bound-
aries but also sought to impose measures to protect such minorities from discrimination
or persecution, and to permit them to pursue education in their own languages, in their
(sometimes new) countries of residence.
The League of Nations system included a dispute resolution procedure, allowing com-
plaints to be brought to the Council of the League of Nations by wronged minorities. This
procedure sometimes led to further referrals on questions of law to the Permanent Court
of International Justice (PCIJ). Important PCIJ decisions on minority rights include Rights
of Minorities in Upper Silesia (Minority Schools)2 and the advisory opinion on Minorit y
Schools in Albania.3
The League system of minorit y protection evaporated prior to World War II, but suc-
cessor mechanisms exist, including, for example, the High Commissioner on National
Minorities within the Organization for Security and Co-operation in Europe (OSCE). The
OSCE is a regional intergovernmental organization centred in Europe but with Canada
and the United States among its fift y-seven participating states. The office of the High
Commissioner on National Minorities was created in 1992 to prevent ethnic conflict, a
major source of large-scale violence in modern Europe. The mandate of this office is as
follows:
The High Comm issioner on National Minorities’ task is to provide “early warnin g” and,
as appropriate, “early action” at the earliest possible stage “in regard to tensions involving
national minority issues which have not yet developed beyond an early warning stage,
but, in the judgement of the High Commissioner, have the potential to develop into a
conflict within t he OSCE area.”
The Hig h Commissioner on National Minorities ( HCNM) thus has a two-fold mis-
sion: first, to try to contain and de-escalate tensions and, second, to ac t as a “ tripwire”,
meaning that he or she is responsible for a lerting t he OSCE whenever such ten sions
threaten to develop to a level at which the High Commissioner cannot contain them with
the means at his/her disposal.4
Another European intergovernmental organization, known as the Council of Europe,
has since sponsored the first (and so far only) multilateral convention specifically focused
on the protection of the rights of national minorities, giving effect to a desire expressed
in the 1990s to transform the political commitments embraced by the OSCE into legal
obligations.5 As for the general international legal position, the rights of ethnic, religious,
2 (1928) PCIJ (Ser A) No 15.
3 (1935) PCIJ (Ser A/B) No 64.
4 High Commissioner on National Minorities: About : Mandate, online: www.osce.org/hcn m/43201.
5 Framework Convention for the Protection of Nati onal Minorities, 1 February 1995, 2151 UNTS 243, ETS
No 157, (1995) 34 ILM 353, in force 1 February 1998.
Chapter 9: International Human Rights L aw 587
and linguistic minorities are also recognized by the leading international instrument for
the protection of civil and political rights,6 discussed below (albeit more in the form of in-
dividual rather than collective rights). A 1992 declaratory text offers additional guidance.7
2) Protec tion of Foreign Nationals
a) Overview
Foreign nationals within a state are often referred to as “aliens” in international law. Inter-
national law has long imposed certain constraints on the behaviour of the state in which
an alien happens to be. States may not mistreat a foreign national, since to do so is to vio-
late an international legal obligation owed to another state, namely the foreign national’s
state of nationality. In its starkest form, a state’s protection of its nationals abroad was,
in the nineteenth century, the pretext for substantial gunboat diplomacy.8 It has since
formed the basis for many claims of international responsibility made by one state against
another, often adjudicated before arbitral tribunals.
Exactly what sorts of mistreatment of foreign nationals rise to the level of breaches
of international law has been the source of some contention between developing and
developed states. In part responding to the concern that the protection of one’s nation-
als abroad was linked to colonialism, and in par t due to a sense that it would be unfair
to impose the same standard on developing as on developed states, some developing
states have sought to set the bar for the treatment of foreign nationals quite low (in
the view of some developed states) by advocating a “national treatment” standard. If
embraced, a national treatment standard requires that a s tate treat foreign nationals no
worse that it treats its own nationals.9 As such, national treatment is simply a principle
of non-discrimination. It sets no minimum standard of behaviour, leaving foreign nation-
als vulnerable to abuse where states choose to treat their own citizens equally poorly. To
address these concerns, and also motivated by a desire to protect the property rights of
their nationals in developing states, developed states have maintained that the treatment
of foreign nationals must not fall below an “international minimum standard.” It appears
6 International Covenant on Civil and Political Rights, 16 Dece mber 1966, 999 UNTS 171, Can TS 1976 No
47, (1967) 6 ILM 368, in force 23 March 1976, art 27.
7 Declaration o n the Rights of Persons Belon ging to National or Ethnic, Re ligious or Linguistic Mino rities, GA
Res 47/135 (1992), reprinted in UN GAOR, 47th Sess, Supp No 49, vol I at 210–12, UN Doc A/47/49
(199 2).
8 Richard B Lillich, The Human Rights of Ali ens in Contemporary In ternational Law (Manchester: Manchester
University Press, 1984) at 14–15.
9 A leading proponent of the national treat ment standard was the Argentine diplomat and public ist Carlo
Calvo, who argued that aliens have onl y those rights and privileges extend ed to nationals, and that they
must seek relief for any grie vances in national courts. The so-c alled Calvo Doctrine was influential in
Latin America. Se e also article 9 of the (Montevideo) Convention on the Rig hts and Duties of States, 26
December 1933, 165 LNTS 19, in force 16 December 1934, discussed in Chapter 3. However, the Calvo
doctrine “never has rece ived widespread support elsewher e, primarily because its drastic curt ailment
of the institution of diplomatic prote ction would leave aliens without even nominal pro cedural safe-
guards under the existing inter national order”: Richard Lillich, “The Current Status of t he Law of State
Responsibility for Injuries to Alie ns” in Richard Lillich, ed, Internation al Law of State Responsib ility for
Injuries to Aliens (Charlottesville: Universit y Press of Virginia, 1983) at 4.
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