Anthony Aust. Handbook of International Law

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has put it, ‘elementary considerations of humanity, even more exacting in peace than in war’.

The

situation is not affected by failure to get Council authorisation for intervention, since such use of

force would not violate the Charter. NATO’s intervention in Kosovo in 1999 was neither authorised,

nor condemned by the Security Council,

although it has been criticised by some states and

international lawyers. The most cogent criticism would seem to be the manner in which force was

used: air strikes on other parts of Serbia rather than the use of ground forces in Kosovo. If from the

beginning force had been used directly in Kosovo, it might well not have been seen as unreasonable

and the reaction might have been more like that in 1991.

Alternatively, it is argued that humanitarian intervention without Security Council authorisation is

unlawful but, as in domestic law, sometimes an illegal act can be legitimate morally. As such, it may

be overlooked by the law-enforcement authorities or treated leniently. This way around the dilemma

(some might unkindly call it a cop-out) is inherently unsatisfactory since it only moves the issue

from the legal to the moral plane. International law has shown itself able to cope with new

challenges.

85. Corfu Channel (Merits) ICJ Reports (1949), p. 4, at p. 22; 16 ILR 155. And see C. Greenwood,

‘Humanitarian Intervention: The Case of Kosovo’ (1999) 10 Finnish YB of International Law 141–75.

86. On 29 March 1999, a draft resolution (S/RES/1999/328) condemning it was defeated by 12–3–0: see

S/PV.3989.

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11 Human rights

. . . unwilling to witness or permit the slow undoing of those human rights to which this nation has always

been committed, and to which we are committed today at home and around the world.

Brownlie and Goodwin-Gill, Basic Documents on Human Rights, 4th edn, Oxford, 2002 (BGG)

Joseph, Schultz and Castan, The International Covenant on Human Rights: Cases, Material and

Commentary, Oxford, 2002

Jacobs and White, European Convention on Human Rights, 3rd edn, Oxford, 2002

Reid, A Practitioner’s Guide to the European Convention on Human Rights, 2nd edn, London, 2004

Van Dijk, van Hoof and Heringa, The Theory and Practice of the European Convention on Human Rights,

3rd edn, The Hague, 1998

Tomuschat, Human Rights: Between Idealism and Realism, Oxford, 2003 UN High Commissioner for

Human Rights, www.unhchr.ch

The terms ‘humanitarian law’ or ‘international humanitarian law’ (IHL), if correctly used, refer only

to that area of international law concerned with the protection of members of armed forces and

civilians during an armed conflict or military occupation of territory (see Chapter 12 below).

However, human rights do not cease completely to apply once IHL applies. They continue except in

so far as the special rules (lex specialis) of IHL apply or human rights treaties have been validly

derogated from.

Human rights jurisprudence may be relevant also to the interpretation of IHL, such

as the meaning of torture, for which there are even more instances in peacetime. In other words, IHL

and human rights should not

1. John F. Kennedy’s inaugural address, 20 January 1961.

2. Not to be confused with the UN High Commissioner for Refugees (www.unhcr.ch).

3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports

(2004), paras. 102–13; ILM (2004) 1009.

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be seen as entirely separate areas of international law. The term ‘civil rights’ usually refers to human

rights in domestic law, particularly in the United States.

The Nazi period was notorious for massive violations of human rights. The next sixty years were

marked by the development of sophisticated international human rights treaties. Although influenced

by domestic principles, such as those in the US Bill of Rights, the French Declaration of the Rights

of Man or the English common law, human rights are no longer regarded as a purely domestic

matter. The United Nations is prohibited by Article 2(7) of its Charter from intervening in ‘matters

which are essentially within the domestic jurisdiction’ of a state, Although the actual promotion and

protection of human rights within a state must necessarily be primarily the responsibility of its

government, human rights are no longer regarded as a matter ‘essentially’ within each state’s

jurisdiction, the United Nations having adopted many human rights treaties, and from its earliest

days passed resolutions condemning human rights abuses.

The number of treaties and other instruments on human rights is now so great that it is possible

only to describe the main principles and the basic international and regional enforcement

mechanisms. The wealth of jurisprudence that has been built up and is constantly developing can be

understood only by consulting specialised books.

Who enjoys the rights?

A state is required to protect the human rights of everyone ‘within its territory and subject to its

jurisdiction’ (International Covenant on Civil and Political Rights 1966 (ICCPR))

or ‘subject to its

jurisdiction’ (European Convention for the Protection of Human Rights and Fundamental Freedoms

1950 (ECHR)).

In practice, there may be little difference between the ICCPR and the ECHR

formulations: attempts to apply the ECHR to acts taking place outside the territory of a party have

generally been unsuccessful. In Bankovic in 2001, the European Court of Human Rights

unanimously held that the ECHR did not protect civilians in the Federal Republic of Yugoslavia

who had been killed in attacks there by certain

4. International Covenant on Civil and Political Rights 1966 (ICCPR) and Optional Protocol, 999 UNTS

171 (No. 14668); ILM (1967) 368; UKTS (1977) 6; BGG 182.

5. European Convention on Human Rights (ECHR) 1950, 213 UNTS 221 (No. 2889); UKTS (1953) 71;

BGG 398.

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member states of NATO, since under the ECHR jurisdiction is essentially territorial.

But the

English courts have held recently that the ECHR does apply to the actions of British officials and

members of the armed forces abroad in situations where they have effective control, as in diplomatic

or consular premises or a military prison.

The rights normally apply only to natural persons, but certain of them (mostly in respect of

property) apply to legal persons such as corporations.

Legal nature of a human right and exhaustion of domestic remedies

Human rights treaties require the parties to protect the rights by properly implementing and

enforcing them, although too many parties do not take these obligations seriously enough. The rights

are against the state, not private persons. An attack by a burglar, however serious and disagreeable,

is in itself not a breach of the victim’s human rights. But, if a policeman attacks you, your human

rights may well have been violated. You may then be entitled to take the matter directly to an

international tribunal or body. But, if there are remedies available in domestic law, you must first

exhaust them,

unless it would be unreasonable to insist on your doing so if, for example, the

process would be exceedingly long or the remedy ineffective.

Universal human rights treaties

United Nations

In 1948, the United Nations adopted the Universal Declaration of Human Rights.

Although often

cited as if it were legally binding, it is not a treaty. But it provided the foundation for the treaties,

universal

and regional, that were to follow. The same year, the Genocide Convention was

adopted.

The UN bodies most concerned with drafting human rights

6. App. 52207/99; ILM (2002) 517; 123 ILR 94, paras. 59–8.

7. See p. 187 above on diplomatic asylum and R. (B. Children) v. Secretary of State for Foreign and

Commonwealth Affairs [2005] 2 WLR 618; and R. (Al-Skeini) v. Secretary of State for Defence [2004]

EWHC 2911.

8. See p. 243 below.

9. See, for example, ICCPR, Article 41(1)(c) and ECHR, Article 35.

10. See Shaw, pp. 254–5.

11. UNGA Res. 217 ( ); BGG, p. 18.

12. See p. 52 above.

13. For genocide and other crimes against humanity, see pp. 270-2 below.

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treaties for adoption by the General Assembly are ECOSOC, and its subsidiary, the Commission on

Human Rights (CHR) (not to be confused with the Human Rights Committee (HRC)

established

by the ICCPR), and the Third and Sixth Committees of the General Assembly.

The Universal Declaration was followed by treaties on specific subjects, such as the Refugee

Convention 1951,

the Conventions on Statelessness of 1954 and 1961

and the Convention on

the Elimination of All Forms of Racial Discrimination 1966 (CERD).

But it was not until 1966

that two general treaties were adopted: the International Covenant on Civil and Political Rights

(ICCPR)

and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The two Covenants now have 154 and 151 parties respectively. The Covenants cover all the most

important human rights, but of the two the ICCPR has been the more influential because it covers

the ‘harder’ individual rights enunciated in the Universal Declaration of Human Rights, and has a

monitoring mechanism, the Human Rights Committee.

The ICESCR is concerned with collective

rights, such as the right of peoples to self-determination

and to dispose freely of their natural

resources, as well as rights which, because they are broad and require positive action by the state,

such as provision of work, housing, food, health and education, make their implementation more

problematic. They are therefore expressed more in terms of aspirations.

But the ICESCR has led

to the formulation of more detailed obligations in treaties such as the Convention on the Rights of

the Child 1989.

The so-called right to development is not included in the ICESCR and, despite the

importance of development, the assertion that it is a right in international law cannot be sustained.

The other UN human rights treaties of most significance are the Convention on the Elimination of

All Forms of Discrimination against Women 1979 (CEDAW),

and the Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment 1989.

14. See p. 248 below.

15. See p. 188 above.

16. See p. 181 above.

17. 660 UNTS 195 (No. 9464); UKTS (1969) 77; BGG, p. 160.

18. 999 UNTS 171 (No. 14668); ILM (1967) 368; UKTS (1977) 6; BGG 182.

19. 993 UNTS 3 (No. 14531); UKTS (1977) 6; BGG, p. 172.

20. See p. 248 below.

21. The right is found also in the ICCPR: see pp. ** above for details.

22. For a different view, see Higgins, pp. 99–104.

23. 1577 UNTS 3 (No. 27531); ILM (1989) 1448; UKTS (1992) 44; BGG, p. 241.

24. Higgins, pp. 103–4.

25. 1249 UNTS 13 (No. 20378); ILM (1980) 33; UKTS (1989) 2; BGG, p. 212.

26. 1465 UNTS 85 (No. 24841); ILM (1984) 1027; UKTS (1991) 107; BGG, p. 229.

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ILO

In the field of work, the International Labour Organization has since 1919 produced some 185

treaties (termed conventions) to improve labour standards. In 1946, it became a UN specialised

agency. It is unique in that representatives of governments, employers and workers have equal

representation in the decision-making bodies.

Regional human rights treaties

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

(ECHR)

The ECHR is the most important treaty adopted by the Council of Europe (CoE), and therefore not

an EU instrument. It is a precondition of admission as a member of the CoE that the applicant state

becomes party to the ECHR and accepts the compulsory jurisdiction of the European Court of

Human Rights, the right of individual application

and all the Protocols to the ECHR. The ECHR

has fourteen Protocols, although only seven are still relevant: Nos. 1, 4, 6, 7, 13 and 14.

The

substantive Articles of the Protocols are regarded as additional Articles to the ECHR. Since the

United Kingdom enacted the Human Rights Act 1998,

Ireland is the only party to the ECHR that

has not legislated specifically to implement it.

Several CoE Members still have overseas territories, and the ECHR (Article 56), and each

Protocol, enables those Members to extend the instrument to all or any of those territories.

The human rights in the ECHR are not quite as extensive as in the ICCPR, although the rights that

are common to both instruments are generally formulated in a similar way, the drafters of the ICPPR

having benefited from the experience of the ECHR. The real strength of the ECHR lies in the

effectiveness of its enforcement mechanism (the European Court of Human Rights) and the maturity

of its jurisprudence.

And, if a case before the European Court of Justice involves a question of

human rights, the ECJ is likely to apply the ECHR, to which all EU

27. See www.ilo.org.

28. See p. 248 below.

29. The CoE Parliamentary Assembly sometimes allows a little delay in ratifying a Protocol when there are

special circumstances. The ECHR was amended by Protocol No. 11 to restructure the enforcement

mechanism. For the text as amended by Protocol No. 11, see www.echr.coe.int or BGG, p. 398. On reform

of the Court’s procedures, see p. 246 below.

30. For a short description of the Act, see Aust, p. 154.

31. For a very brief overview of the jurisprudence, see Shaw, pp. 330–2.

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member states are parties.

Article 17 of Protocol No. 14 provides for the EU to accede to the

ECHR.

American Convention on Human Rights 1969

This is often referred to as the Inter-American Convention, probably because it created an Inter-

American Commission (and Court) of Human Rights. Established by the Organization of American

States (OAS) based in Washington DC, it entered into force in 1978. The parties do not include

some Caribbean states, Canada or the United States. The Convention follows generally the ECHR.

African Charter on Human and Peoples’ Rights 1981

The Charter (which is treaty) entered into force in 1986, and all members of the African Union

(formerly the OAU) are parties. The Charter follows generally the ICCPR and the ICESCR, but goes

further by providing that ‘peoples’ shall have certain rights, such as the right to development.

also includes a chapter on the ‘duties’ of the individual. Although some of these duties are to do

with the family, others, such as the duty not to compromise the security of the state, may have a

similar purpose to the qualifications to certain Articles of the ICCPR and the ECHR that can have

the effect of limiting the extent of a right (see below).

Arab Charter on Human Rights 1994

The Charter (a treaty) lists the usual human rights, but the preamble reaffirms the Cairo Declaration

on Human Rights in Islam 1990, which specifies human rights in the context of a state governed

according to Islamic Sharia,

and Article 27 allows for restrictions on the exercise of freedom of

belief, thought and opinion if they are imposed by law.

32. See also Shaw, pp. 344–53, who also discusses the role of the OSCE and the CIS in human rights.

33. 1144 UNTS 144 (No. 17955); ILM (1970) 99; www.oas.org.

34. See www.africa-union.org; 1520 UNTS 218 (No. 26363); ILM (1982) 58. See Evans and Murray

(eds.), The African Charter of Human and Peoples’ Rights, Cambridge, 2002.

35. See the text to n. 24 above.