International Human Rights Law
| Author | John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld |
| Pages | 571-663 |
CHAPTER 9
International Human Rights Law
International law historically regarded a state’s treatment of most individuals within its bor-
ders as a domestic matter, although states have long been obliged to treat specic categories
of individuals in particular ways. Take, for example, the protections for religious minorities
included in the Treaty of Westphalia, discussed in Chapter , or the prohibition of slavery and
the slave trade since the nineteenth century. Nevertheless, arguably the single greatest revo-
lution 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 indi-
viduals and peoples. This body of law has been described by Abella J of the Supreme Court
of Canada as “the phoenix that rose from the ashes of World War II and declared global war
on human rights abuses.”
In this chapter, we provide an overview of international human rights law, with a focus
on treaties as the source of international legal obligation. (Unlike the United States, Canada
is a party to most of the core international human rights treaties, and thus need not rely on
customary international law to source its obligations in this area.) We begin, however, by
looking at the key precursors to today’s vast international legal framework for the protection
of human rights, notably protections for certain minorities, the treatment of foreign nationals
(referred to as “aliens” in earlier times), international labour law, and international humani-
tarian law. We then focus on how international human rights protections have been codied
in treaties developed by states under the auspices of the United Nations (UN) and several
regional organizations. We also examine some of the specic 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.
See Slavery Convention, September , LNTS , Can TS No , in force March , later
amended by the Protocol amending the Slavery Convention, October , UNTS , Can TS
No , in force December , and expanded upon by the Supplementary Convention on the Abolition
of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery, September , UNTS ,
Can TS No , in force April ( states parties). For an earlier bilateral example, see Treaty
Between Great Britain and the United States, to settle and dene Boundaries between the Possessions of Her
Britannic Majesty in North America, and the Territories of the United States; for the nal suppression of the
African Slave Trade; and for the Giving up of Criminals and Fugitives from Justice in certain cases, October
, British State Papers , in force October .
Nevsun Resources Ltd v Araya, SCC at para .
INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
A. KEY PRECURSORS TO THE INTERNATIONAL HUMAN RIGHTS REGIMES
) Protection of Minorities
Even in early international law, various treaties included provisions requiring states parties 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 in the West-
phalia 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 Eur-
ope, 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 conict, the Allied powers redrew many national boundaries 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 complaints
to be brought to the Council of the League of Nations by wronged minorities. This procedure
sometimes led to referrals of questions of law to the Permanent Court of International Justice
(PCIJ). Important PCIJ decisions on minority rights include the Rights of Minorities in Upper
Silesia (Minority Schools) judgment and the advisory opinion on Minority Schools in Albania.
The League system of minority protection evaporated prior to World War II, but successor
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 participating states. The oce of the High Commissioner on National
Minorities was created in to prevent ethnic conict, which has been a major source of
large-scale violence in modern Europe. The mandate of the oce “involves containing and
de-escalating tensions involving national minorities within the OSCE area and alerting the
Organization to risks by providing early warning and early action where a situation has the
potential to turn into conict.” The High Commissioner acts independently of all parties
concerned and does not deal with individual complaints.
Another European intergovernmental organization, known as the Council of Europe, spon-
sored the rst (and so far only) multilateral convention specically focused on the protection of
the rights of national minorities, giving eect to a desire expressed in the s to transform
the political commitments embraced by the OSCE into legal obligations for European states.
As for the general international legal position, the rights of ethnic, religious, and linguistic
minorities are also recognized by the leading international instrument for the protection of
civil and political rights, discussed below. A declaratory text oers additional guidance.
(Germany v Poland), () PCIJ (Ser A) No .
() PCIJ (Ser A/B) No .
OSCE High Commissioner on National Minorities, “Mandate,” online: www.osce.org/hcnm/.
Framework Convention for the Protection of National Minorities, February , UNTS , ETS
No , () ILM , in force February ( states parties).
International Covenant on Civil and Political Rights, December , UNTS , Can TS No
, () ILM , in force March , art ( states parties).
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities,
GA Res /, UN Doc A/RES// (), reprinted in UN GAOR, th Sess, Supp No , vol I at
–, UN Doc A// ().
Chapter : Inte rnational Human Rights Law
) Protection of Foreign Nationals
a) Overview
International law has long imposed certain constraints on the behaviour of the state in which
a foreign national (or “alien”) happens to be. Basically, states may not mistreat a foreign
national, since to do so is to violate an international legal obligation owed to another state,
namely the foreign national’s state of nationality. In its starkest form, a state’s interest in the
protection of its nationals abroad was, in the nineteenth century, the pretext for substantial
gunboat diplomacy. It has since formed the basis for many claims of international respons-
ibility 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 inter-
national 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 nationals abroad was linked to
colonialism, and in part 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 would require
that a state treat foreign nationals no worse that it treats its own nationals. As such, national
treatment is simply a principle of non-discrimination. It sets no minimum standard of behav-
iour, leaving foreign nationals vulnerable to abuse where states treat their own nationals equally
poorly. To address these concerns, but 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.” While “the contro-
versy between national and international standards has not been nally resolved,” many view
the international minimum standard as a requirement of customary international law.
Exactly how bad a state’s behaviour must be to breach the international minimum stan-
dard of treatment is somewhat uncertain. The inuential Third Restatement of the Foreign
Relations Law of the United States proposes that states violate the requisite standard of con-
duct where their treatment of foreign nationals transgresses the human rights principles that
they are obliged to extend to their own nationals under conventional or customary human
Richard B Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester: Manchester
University Press, ) at –.
A leading proponent of the national treatment standard was the Argentine diplomat and publicist
Carlos Calvo, who argued that aliens have only those rights and privileges extended to nationals,
and that they must seek relief for any grievances in national courts. The so-called Calvo Doctrine
was inuential in Latin America. See also Article of the (Montevideo) Convention on the Rights and
Duties of States, December , LNTS , in force December , discussed in Chapter .
Although Calvo-like sentiments have been embraced recently by members of the US Congress and by
former US President Donald Trump, it has been observed that the Calvo Doctrine “never has received
widespread support elsewhere, primarily because its drastic curtailment of the institution of diplo-
matic protection would leave aliens without even nominal procedural safeguards under the existing
international order”: Richard Lillich, “The Current Status of the Law of State Responsibility for Injuries
to Aliens” in Richard Lillich, ed, International Law of State Responsibility for Injuries to Aliens (Charlottes-
ville: University Press of Virginia, ) at .
James Crawford, Brownlie’s Principles of Public International Law, th ed (Oxford: Oxford University
Press, ) at –. See also Certain German Interests in Polish Upper Silesia (Germany v Poland),
Judgment, () PCIJ (Ser A) No , implicitly rejecting the national treatment approach in recogniz-
ing “the existence of a common or generally accepted international law respecting the treatment of
aliens . . . which is applicable to them despite municipal legislation.”
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