International Protection of Human Rights

AuthorJohn H. Currie
The emergence and growth of international human rights law prob-
ably ranks, along with the establishment of the United Nations and the
prohibition of the unilateral use of force, among the most signif‌icant
developments in international law since the Peace of Westphalia some
three and a-half centuries ago. This is because this relatively new area
challenges some of the most fundamental assumptions of tradition-
al international law. Until the twentieth century, chief among these
was the assumption that international law only concerned the mutual
rights and obligations of states,1 which in turn were a ssumed to be its
sole subjects.2
In contrast, the whole premise of international human rights law is
that individuals and, in some cases, groups enjoy certain basic rights
that are recognized in international law and are opposable against all
states, including their own. The rapid establishment of international
human rights law in the twentieth century thus not only fractured the
virtually complete monopoly that states had previously held over inter-
national legal personality, but it also radically narrowed the concept of
“domestic jurisdiction,” the protected sphere in which states exercise
their sovereignty and in which other states and the international com-
1 See Chapter 1, Sect ion B(2).
2 See Chapter 2, Se ction B(1).
Internation al Protection of Human Right s 413
munity must not interfere.3 In other words, international human rights
law displaced the earlier bedrock principles that individuals do not
directly enjoy rights at international law and that states are not answer-
able in that forum for their treatment of their own nationals within
their own territory. International human rights law thus emerged as
the single most potent “spoiler” of the full sovereignty of the traditional
Westphalian state.
Given such deep implications, human r ights discourse has come
to permeate virtually all modern developments in international law.
As we shall see, however, while the concept of human rights protec-
tion has gained widespread currency in modern international law, con-
crete implementation and enforcement measures remain substantially
underdeveloped. Thus, the evolution of international human rights
protection at once illustrates international law’s potential for extra-
ordinary and rapid innovation, but also its frustrating reluctance to
develop robust enforcement mechanisms that would interfere with the
sovereign interests of states.
In light of the foregoing, a general familiarity with at least the over-
all international human rights framework that has emerged in the past
sixty years or so is essential to understanding the dy namic of modern
international law. The goal of this chapter is to introduce readers to
that framework. This basic overview can then serve as a basis for fur-
ther study of what has become a vast and highly speciali zed f‌ield of
international law, the full scope of which would be diff‌icult to capture
in a large volume, let alone in the present chapter.4
3 “Nothing conta ined in the present Charter sha ll authorize the United Nat ions
to intervene in m atters which are essent ially within the dome stic jurisdiction
of any state or shal l require the Members to submit s uch matters to settlement
under the prese nt Charter”: Charter of the United Nations, 26 June 1945, Can.
T.S. 1945 No. 7 (entered into force 24 October 1945) [UN Charter], Article 2(7).
Article 2(7) goes on to say t hat “this principle sha ll not prejudice the applica-
tion of enforcement mea sures under Chapter VII.”
4 For a more thorough introduct ion to this area of intern ational law, readers are
referred to a compa nion volume in this series: se e M. Freeman & G. van Ert,
Internati onal Human Rights Law (Toronto: Irwin Law, 2004).
1) Precursors to International Human Rights Protection
The concept of human rights is not in itself particularly new, having
roots in ancient philosophy. As a legal construct it rose rapidly to prom-
inence during the Enlightenment, mainly in the writings of such legal
philosophers as John Locke,5 Jean-Jacques Rousseau,6 Montesquieu,7
and others. Various events, such as the English Civil War and the
American and French Revolutions, catalyzed a considerable ferment
of ideas about the relationship of the individual to the state and, more
particularly, about certain inalienable rights of individuals and con-
comitant restraints on t he power of the state. However, the majority
of this rumination concerned the internal relations of states or gov-
ernments w ith their own peoples. While what would eventually come
to be known as human rights have been a prominent feature of legal
discourse for a considerable period, until the twentieth century it was
widely considered that such matters concerned only domestic, and not
international, law.
A number of early developments, however, may help to explain the
astonishing rapidity with which human rights norms entered the main-
stream of international law in the mid-twentieth century. For example,
the nineteenth century development of international rules for the treat-
ment of foreign nationals (or “aliens”) marked an indirect recognition
of certain basic standards of conduct required of states vis-à-vis certain
individuals. However, that area of the law was largely based on mutual
obligations of states not to harm one another through mistreatment of
one another’s nationals, rather than on international legal rights held
by individuals themselves. It also provided no protection at all to indi-
viduals from mistreatment by their own state.8
5 See J. Locke (16321704), Second Treatise of Government, 1690, ed. by C .B. Mac-
pherson (Indian apolis: Hackett, 1980).
6 See J-J. Rousseau (17121778), Social Contract and Oth er Later Political Writings,
trans. by V. Gourevitc h, ed. (Cambridge: Ca mbridge University Pres s, 1997).
7 See C. de S. Montesqu ieu (16891755), De l’esprit des lois (Pari s: Garnier frères,
8 See furth er Chapter 8, Section D. And see, general ly, R.B. Lillich, The Hu man
Rights of Aliens in Contemp orary International Law (M anchester: Manchester
University Pre ss, 1984).

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