International Protection of Human Rights

• Author: John H. Currie
• Pages: 412-447

CHA PTER 10

INTERNATIONAL

PROTECTION

OF HUMAN RIGHTS

A. INTRODUCTION

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).

412

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).

PUBLIC INTERNATIONA L LAW414

B. DEVELOPMENT AND SCOPE OF THE

INTERNATIONAL HUM AN R IGHTS

FR A ME WOR K

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 (1632–1704), Second Treatise of Government, 1690, ed. by C .B. Mac-

pherson (Indian apolis: Hackett, 1980).

6 See J-J. Rousseau (1712–1778), 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 (1689–1755), De l’esprit des lois (Pari s: Garnier frères,

1941).

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).