Written by : Praveen V N , 1 year (3year LLB.), Lovely Professional University.
ABSTRACT:
Noting that 2022 marked the 45th anniversary of the Additional Protocols to the 1949 Geneva Conventions – the first treaties that explicitly noted the relationship between international human rights law and international humanitarian law - this column reflects on how the relationship between these two bodies of law has developed since 1977. It demonstrates that while much progress has been made internationally towards understanding the relationship between two bodies of law, there are still obstacles to be overcome if the goal is to apply the two bodies of law in a complementary fashion and achieve the maximum protection of the human person.This paper explores the pivotal role of public international law in upholding and promoting human rights on a global scale. Human rights violations persist in various forms and contexts worldwide, necessitating a robust legal framework to address such challenges. Public international law serves as a cornerstone in this endeavor, offering a normative framework and mechanisms for accountability to protect individuals’ inherent dignity and fundamental freedoms.The abstract begins by elucidating the multifaceted nature of human rights, emphasizing their universality, inalienability, and interdependence. It then delves into the foundational principles of public international law, highlighting its evolution, sources, and principles, including customary law, treaties, and general principles of law recognized by civilized nations.
Next, the abstract examines the mechanisms through which public international law intersects with human rights protection, such as international treaties, customary norms, regional human rights systems, and the role of international organizations, including the United Nations and its specialized agencies.Furthermore, the abstract explores contemporary challenges and debates within the realm of public international law concerning human rights, such as the tension between state sovereignty and international intervention, the enforcement mechanisms for human rights treaties, and the evolving nature of human rights in the face of technological advancements and globalization.
Drawing on case studies and pertinent examples from various regions and contexts, the abstract underscores the practical implications and effectiveness of public international law in advancing human rights, while also acknowledging its limitations and areas for improvement.
HISTORICAL BACKGROUND:
The origins of human rights can be traced back to ancient civilizations, where notions of justice, fairness, and dignity were articulated in religious, philosophical, and legal texts. Examples include the Code of Hammurabi in Mesopotamia, the teachings of Confucius in China, and the laws of ancient Greece and Rome. While these early legal systems primarily focused on the rights of citizens within their respective societies, they laid the groundwork for later conceptions of universal human rights.
The development of modern international law can be traced to the rise of nation-states in Europe during the late Middle Ages and early modern period. The Peace of Westphalia in 1648 is often cited as a landmark event, establishing the principles of state sovereignty and non-interference in domestic affairs. However, early international law primarily concerned itself with regulating relations between states rather than protecting the rights of individuals.
The Enlightenment period of the 18th century saw a resurgence of Interest in natural law and individual rights. Philosophers such as John Locke, Jean-Jacques Rousseau, and Immanuel Kant articulated theories of inherent human rights based on reason and natural law principles. These ideas laid the intellectual groundwork for the later codification of human rights in international law.
The 19th century witnessed significa’t advancements in the codification of international law and the recognition of certain human rights principles. The Congress of Vienna in 1815 established diplomatic protocols and norms aimed at maintaining peace and stability in Europe. Additionally, the abolitionist movement led to the gradual elimination of the transatlantic slave trade and the recognition of the inherent rights of enslaved individuals.
The 20th century marked a paradigm shift In the relationship between public international law and human rights, driven by the atrocities of World War II and the Holocaust. The adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in 1948 signaled a landmark moment in the recognition of universal human rights. Subsequent human rights treaties, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, further solidified the legal framework for human rights at the international level.
Despite significant progress, the role of public international law in human rights continues to face challenges in the contemporary world. Issues such as state sovereignty, cultural relativism, and geopolitical interests often pose obstacles to the effective protection of human rights. However, advancements in international human rights mechanisms, such as the establishment of international criminal tribunals and regional human rights courts, provide avenues for accountability and justice
The historical evolution of the role of public International law in human rights reflects a dynamic and evolving process shaped by historical, political, and social factors. While significant strides have been made in recognizing and protecting human rights at the international level, ongoing challenges underscore the need for continued advocacy, cooperation, and adherence to the principles of justice and equality embodied in international law.
INTRODUCTION:
As 2022 draws to a close, I use this column to reflect on the relationship between human rights law (IHRL) and international humanitarian law (IHL).1 During this year, armed conflict has continued to have a devasting impact on civilians around the world. In February, Ukraine joined the already too long list of countries ravaged by armed conflict, which includes Ethiopia, Yemen, Syria, DRC, Myanmar, and Colombia. Indeed, another year has passed with headlines dominated by stories of the plight of overwhelming numbers of displaced people, civilian casualties, the destruction of homes, towns, schools, hospitals, and essential infrastructure. The losses are staggering and hard to comprehend, not only in their scale but also in the heartbreak they represent. At a time when climate change is threatening human survival and the planet’s natural resources are more precious than ever, the tragedy of fighting parties inflicting destruction upon life and infrastructure in an intentional manner is more profound than ever.Faced with such horrors, it is tempting to become disillusioned with the system of international law entirely. But while professional and legal soul-searching in response to such catastrophes is essential, I believe that it is also important not to fall into the temptation of ‘blaming tools’ rather than expending energies shaping or sharpening them to make them better fit for purpose.2 For scholars working in the field of armed conflict, this means redoubling efforts to ensure that the legal norms that are in place to prevent such atrocities are clear and sufficient, so that they can be better complied with by the fighting parties, and so that their violation can have meaningful consequences.It is out of this reasoning that I chose to focus this column on the relationship between IHRL and IHL, as relations between the two bodies of law have historically been famously fraught. In selecting this topic, I am also motivated by the fact that this year marks the 45th anniversary of the 1977 Additional Protocols to the 1949 Geneva Conventions. As these protocols were the first treaties to explicitly acknowledge that IHRL applies to armed conflict alongside IHL, the occasion of their anniversary creates an appropriate moment to take stock of developments since then.4 In reflecting on the manner that this debate has moved in the intervening years, I show that while there is now undoubtedly much more clarity regarding the relationship between IHL and IHRL than 45 years ago at the level of principle, there remains much work needed in this area. In particular, I argue that the recent findings by the European Court of Human Rights (ECtHR) in the Georgia v Russia5 and Shavlokhova v Georgia6 cases have injected instability into the European human rights system, by throwing into doubt whether and when a State will be bound to implement human rights obligations in situations of armed conflict and how human rights law can and should interact with international humanitarian law norms.
APPLICATION OF HUMAN RIGHTS LAW TO ARMED CONFLICT:
To set the scene and provide a framework for my analysis, I will first introduce three different ways in which it is possible to conceive of the relationship between IHL and IHRL. Despite the text of the Additional Protocols perhaps giving the impression that in 1977 everyone agreed that IHRL would apply in times of armed conflict, in fact 45 years ago the idea was extremely controversial and a rather heated debate was raging about the nature of the relationship between IHRL and IHL. As a way of summarising the rather unhappy state of the scholarly debate in 1983, the International Committee of the red Cross (ICRC) identified three main theoretical schools of academic thought that existed at that time: the separatist, complementarist, and integrationist schools.7 According to the ICRC, scholars allied to the complementarist school acknowledged that IHL and IHRL were two distinct systems which complement each other, because they are ‘impelled by a single conviction: respect for the dignity of the human person’.8 This position was in the middle of a spectrum.
The positions on the other side were much more radical and reflected two camps of scholars and practitioners who regarded eachother with ‘mutual suspicion’.9 At one end of the spectrum, scholars of the integrationist school advocated a controversial ‘merger of IHL and IHRL’.10 Several authors within that school provocatively held that IHL was ‘merely part of human rights’ law.11 At the other end of the spectrum, scholars advocated a ‘separatist approach’ arguing that the two legal regimes were ‘completely different and that any coming together of these two branches of law causes harmful confusion’.12 According to scholars of a separatist persuasion, when armed conflict broke out, a curtain would come down on IHRL’s application and the new situation of fighting would be governed entirely by IHL.13 For scholars allied to this school, IHL and IHRL represented separate individual silos of law that existed in isolation. There was no co-application of the legal frameworks and therefore no conflict between them.
OBJECTIVES OF INTERNATIONAL HUMAN RIGHTS LAW:
The primary objective of international human rights law is to safeguard the inherent dignity of all individuals, irrespective of their race, nationality, religion, or social status. This entails protecting individuals from degrading treatment, discrimination, and arbitrary deprivation of rights, thereby affirming their equal worth and value as human beings.
International human rights law seeks to promote and guarantee the exercise of fundamental freedoms, including the rights to life, liberty, and security of person, freedom of expression, association, and religion. By ensuring the enjoyment of these rights, individuals can participate fully in society, express their identities, beliefs, and opinions, and contribute to the advancement of democracy, peace, and social progress.
Another key objective of international human rights law is the prevention of human rights abuses and violations. This involves establishing legal norms and mechanisms to deter states and other actors from engaging in practices that violate human rights, such as torture, genocide, slavery, and arbitrary detention. Prevention strategies include monitoring, reporting, early warning mechanisms, and capacity-building initiatives aimed at strengthening the rule of law and institutional safeguards.
International human rights law aims to ensure accountability for human rights violations and provide effective remedies for victims. States are obligated to investigate, prosecute, and punish perpetrators of human rights abuses, and to provide reparations to victims, including compensation, restitution, rehabilitation, and satisfaction. This objective underscores the importance of access to justice and effective judicial remedies at both national and international levels.
International human rights law fosters cooperation among states, international organizations, civil society, and other stakeholders in the promotion and protection of human rights. This includes sharing best practices, technical assistance, capacity-building, and diplomatic efforts aimed at addressing systemic human rights challenges, such as poverty, discrimination, conflict, and environmental degradation.
The objectives of international human rights law reflect a shared commitment to the promotion of justice, equality, and human dignity on a global scale. By upholding these objectives, the international community can advance the realization of human rights for all individuals, thereby contributing to the attainment of peace, stability, and sustainable development worldwide.
PURPOSE:
International law related to human rights serves a crucial purpose in promoting and protecting the inherent dignity and fundamental freedoms of all individuals, regardless of their nationality, race, gender, or other characteristics. This paper provides a detailed examination of the purpose of international law in relation to human rights, highlighting its overarching goals, principles, and mechanisms for advancing human dignity, equality, and justice on a global scale.
The primary purpose of international law related to human rights is to protect and uphold the inherent dignity of every individual. Human dignity serves as the foundational principle of human rights, affirming the equal worth and value of all human beings. International legal instruments, such as the Universal Declaration of Human Rights (UDHR) and various human rights treaties, recognize and affirm the inviolable nature of human dignity, prohibiting practices that undermine or degrade it, such as torture, slavery, and discrimination.
International human rights law aims to promote equality and non-discrimination by prohibiting unjust distinctions and ensuring equal treatment and opportunities for all individuals. This includes combating discrimination on the basis of race, ethnicity, gender, religion, disability, sexual orientation, or other grounds, and promoting affirmative action measures to address historical injustices and systemic inequalities. The principle of non-discrimination is enshrined in numerous international treaties and is considered a cornerstone of human rights protection.
Another key purpose of international law related to human rights is to ensure accountability for human rights violations and provide access to justice and effective remedies for victims. States are obligated to Investigate, prosecute, and punish perpetrators of human rights abuses, and to provide reparations to victims, including compensation, restitution, rehabilitation, and satisfaction. Additionally, international mechanisms, such as international criminal tribunals and human rights monitoring bodies, play a crucial role in holding states and individuals accountable for human rights violations and promoting justice at the international level.
International human rights law aims to provide special protection for vulnerable groups and individuals who may be at heightened risk of human rights abuses, such as women, children, refugees, migrants, indigenous peoples, and persons with disabilities. Specialized treaties and mechanisms, such as the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, address the unique needs and rights of these groups, aiming to ensure their full participation in society and protection from harm.
International law related to human rights seeks to foster international cooperation and solidarity in the promotion and protection of human rights. This includes sharing best practices, technical assistance, capacity-building, and diplomatic efforts aimed at addressing systemic human rights challenges, such as poverty, conflict, environmental degradation, and humanitarian crises. International cooperation is essential for addressing transnational human rights issues and advancing the global human rights agenda.
The purpose of international law related to human rights is rooted in the promotion of human dignity, equality, and justice for all individuals, regardless of their background or circumstances. By upholding these principles and mechanisms, the international community can work towards creating a world where human rights are respected, protected, and fulfilled for all.
INTERNATIONAL INSTRUMENTS:
Universal Declaration of Human Rights (UDHR):
Adopted by the United Nations General Assembly in 1948, the UDHR is a landmark document that sets out fundamental human rights and freedoms to be universally protected. Its 30 articles encompass civil, political, economic, social, and cultural rights, including the right to life, liberty, and security of person; freedom of expression, religion, and assembly; and the right to education, health, and an adequate standard of living. While not legally binding in itself, the UDHR has inspired numerous international treaties and serves as a foundation for the development of international human rights law.
International Covenant on Civil and Political Rights (ICCPR):
Adopted by the United Nations General Assembly in 1966, the ICCPR is a legally binding treaty that codifies civil and political rights. Its 53 articles guarantee rights such as freedom of speech, assembly, and religion; the right to a fair trial; and the prohibition of torture and arbitrary detention. States parties to the ICCPR are obligated to respect, protect, and fulfill these rights through legislative, judicial, and administrative measures.
International Covenant on Economic, Social, and Cultural Rights (ICESCR):
Also adopted in 1966, the ICESCR is a legally binding treaty that recognizes economic, social, and cultural rights as essential components of human dignity and well-being. Its 31 articles address rights such as the right to work, just and favorable conditions of work, social security, health, education, and an adequate standard of living. States parties to the ICESCR commit to progressively realizing these rights to the maximum of their available resources.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):
Adopted by the United Nations General Assembly in 1979, CEDAW is a comprehensive treaty aimed at eliminating discrimination against women and ensuring gender equality. Its 30 articles address various aspects of women’s rights, including political participation, education, employment, marriage, and family relations. States parties to CEDAW are required to take measures to eliminate discriminatory laws, customs, and practices and to promote substantive equality between women and men.
Convention on the Rights of the Child (CRC):
Adopted by the United Nations General Assembly in 1989, the CRC is a landmark treaty that sets out the civil, political, economic, social, and cultural rights of children. Its 54 articles address issues such as the right to survival, development, protection, and participation. States parties to the CRC are obligated to prioritize the best interests of the child in all actions concerning children and to ensure their rights are respected and protected.
Human Rights Acts and Charters:
Many countries have enacted human rights acts or incorporated human rights provisions into their constitutions or legal frameworks. These acts typically affirm the rights and freedoms recognized in international human rights instruments and provide mechanisms for their enforcement at the national level. Examples include the Human Rights Act in the United Kingdom, the Canadian Charter of Rights and Freedoms, and the Bill of Rights in the United States.
Anti-discrimination Laws:
Anti-discrimination laws prohibit discrimination on various grounds, including race, ethnicity, gender, religion, disability, sexual orientation, and age. These laws aim to ensure equal treatment and opportunities for all individuals and to address systemic inequalities and prejudices within society. Examples include the Civil Rights Act in the United States, the Equality Act in the United Kingdom, and the Canadian Human Rights Act.
Articles and acts related to human rights and international human rights law constitute a comprehensive framework for promoting and protecting the rights and freedoms of individuals worldwide. By upholding these legal instruments and incorporating their principles into domestic legislation, states can advance the realization of human dignity, equality, and justice for all members of society.
CONCLUSION:
In conclusion, the protection and promotion of international human rights are imperative for fostering a world characterized by justice, equality, and dignity for all individuals. Throughout history, significant strides have been made in the development of international human rights law, with landmark treaties, declarations, and conventions laying the groundwork for a robust legal framework. However, challenges persist in ensuring the effective implementation and enforcement of these rights, particularly in the face of systemic inequalities, discrimination, and violations.
The suggestions outlined In this paper offer a comprehensive approach to enhancing international human rights protections, addressing key areas such as legal frameworks, access to justice, empowerment of civil society, tackling systemic inequalities, and fostering international cooperation. By prioritizing these measures, the international community can work towards bridging the gap between human rights principles and their practical realization, thereby advancing the collective aspiration for a more just and equitable world.Furthermore, it is essential to recognize the interconnectedness of human rights with other global challenges, such as poverty, conflict, environmental degradation, and public health crises. Addressing these complex issues requires a holistic and intersectional approach that integrates human rights considerations into broader policy frameworks and development agendas.
Moreover, the role of individuals, civil society organizations, governments, international organizations, and other stakeholders is crucial in driving positive change and holding duty-bearers accountable for their human rights obligations. Empowering individuals to know, assert, and defend their rights, while providing them with access to justice and effective remedies, is essential for building resilient and inclusive societies.
Ultimately, the pursuit of international human rights and protections is an ongoing endeavor that requires sustained commitment, collaboration, and solidarity among all members of the global community. By upholding the principles of universality, indivisibility, interdependence, and non-discrimination, we can collectively strive towards the realization of human rights for all, leaving no one behind in our shared quest for a better world.
REFERENCE: