International Protection of Human Rights
| Author | John H. Currie |
| Profession | Faculty of Law University of Ottawa |
| Pages | 353-383 |
CHAPTER
10
INTERNATIONAL
PROTECTION
OF
HUMAN
RIGHTS
A.
INTRODUCTION
The
emergence
and
growth
of
international human
rights
law
probably
ranks, along with
the
establishment
of the
United Nations
and the
prohi-
bition
on the
unilateral
use of
force,
among
the
most significant develop-
ments
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
traditional 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 assumed
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 personhood;
it
also radically narrowed
the
concept
of
"domestic jurisdiction,"
the
protected sphere
in
which states exercise
virtually unfettered sovereignty
and in
which other states
and the
1 See
above Chapter
1
(B)(2).
2 See
above
Chapter
2
(B)(l).
353
354
PUBLIC
INTERNATIONAL
LAW
international
community must
not
interfere.3
In
other words, interna-
tional human rights
law has
displaced
the
earlier bedrock principles
that individuals
do not
directly
enjoy
rights
at
international
law and
that states
are not
answerable
in
that
forum
for
their
treatment
of
their
own
nationals within their
own
territory. International human rights
law
has
thus emerged
as the
single most potent "spoiler"
of the
full
sovereignty
of the
traditional Westphalian state.
Given
such deep implications, human rights discourse
has
come
to
permeate virtually
all
modern developments
in
international law.
As
we
shall see, however, while
the
concept
of
human rights protection
has
gained widespread currency
in
modern international law, concrete
implementation
and
enforcement measures remain substantially
underdeveloped. Therefore,
the
evolution
of
international
human
rights
protection
at
once illustrates international law's potential
for
extraordi-
nary
and
rapid innovation
but
also
its
frustrating reluctance
to
develop
true enforcement mechanisms that would derogate
from
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
fifty
years
or so is
essential
to
understanding
the
dynamic
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 specialized
field
of
international law,
the
full
scope
of
which would
be
difficult
to
capture
in a
large volume,
let
alone
in the
present chapter.
B.
DEVELOPMENT
AND
SCOPE
OF THE
INTERNATIONAL
HUMAN RIGHTS
FRAMEWORK
1)
Origins
of
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
in
3
"Nothing
contained
in the
present Charter shall authorize
the
United
Nations
to
intervene
in
matters which
are
essentially within
the
domestic jurisdiction
of any
state
or
shall require
the
Members
to
submit such matters
to
settlement under
the
present
Charter":
Charter
of
the
United
Nations,
26
June 1945, Can. T.S. 1945
No.
7
(entered into
force
24
October
1945)
[hereinafter
UN
Charter],
Article
2(7).
Article
2(7) goes
on to say
that
"this principle shall
not
prejudice
the
application
of
enforcement
measures under Chapter
VII."
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