The International Order of Human Rights Law

The protection of the fundamental rights which belongs to human beings is vital in modern society of our century. Competition among different countries and empires, wars among various nations, and several humanitarian disasters in the world’s history have been paving the way for international human rights law. Indeed, during the process of the development of the modern society, a variety of establishments, such as the League of Nations, the United Nations, the International Court of Justice, and the European Court of Human Rights, have been established. There are two types of law in our world, and the basis of international human rights law is constituted by these laws: natural law and positive law (The Investopedia Team., 2023). Natural laws come from the structure of society; they can be defined as the rights of individuals that come from their birth. God, nature, and reason are the resources of natural law. It can be defined as the ideal value. On the other hand, positive law can be described as the law that is generated by humans and authorities. The right to vote, the right to be elected, and other similar rights can be counted as examples of positive law (The Investopedia Team., 2023).

Jus commune, or "common law" is another facet that frames the legal context of human rights, and it reinforces the need to create a self-contained regime on international law for human rights (De Shutter, 2019). In fact, the argument posits that the vitality of natural law depends on the application and codification of a legal system. Indeed, according to the general principles of international human rights law, which embrace positive law and natural law, both individuals and states have to take the relevant measures to guarantee these rights for all citizens. Irrevocably, there exists no theoretical hierarchy among the rights and freedoms; all of them shall be equally important.

Figure 1: The Table Demonstrate The Differences Between Positive Law and Natural Law (Eckman, 2018).

Historical Development

Cyrus Cylinder is the oldest official declaration of human rights in history, and it belonged to the Persian Empire (Finkel, 2013). In 1200, in the United Kingdom, the Magna Carta was published. The Magna Carta is defined as the first constitution in European history. According to this declaration, the right of taxation of the king was limited. The sovereignty of a country was limited for the first time in history. The church was separated from the government, citizens gained the right to own property, and individuals’ unlawful detention became illegal (Herba Corpus Rights) [Uracin, 2017]. After 1500, John Locke developed the idea of natural rights, and this concept was defined as a milestone in the development of international human rights law (Zalta and Nodelman, 2005).

Figure 2: Two Historical Paintings. Depicted are the American War of Independence [Right] and the French Revolution [Left] (Folwer & Elliot, 2013).

The 1600s are defined as the Age of Enlightenment. The American and French Revolutions were realized in this era. In 1628, the U.K. Petition of Rights was published. According to this petition, no free man should be forced to pay taxes without an act of parliament. In addition, no man can be imprisoned contrary to the law (UK Parliament Archive, 1628). Then, in 1689, the U.K. Bill of Rights was published. This document included the right to be elected to parliament, freedom of speech, and the prohibition of illegal forfeiture (Hoggart, 1989). The civil and political rights of each individual were identified in the United States Declaration of Independence. The right of revolution has found a place for itself in this declaration as well. This declaration can be defined as the basis of the 1787 Constitution of the United States (Britannica, 2023). The 1791 US Bill of Rights was another important document that amended the US Constitution and protected the rights of residents and even visitors to US territories. The deprivation of a person’s life by a government became prohibited. Then, at the beginning of the 1800s, American civil law started developing its own principles, upon which future legal discourse rested in the United States. Further, when the civil war ended, slavery was abolished, and discrimination was unconditionally prohibited by additional constitutional amendments. The era of world wars was also defined as a critical era for the history of human rights law. When World War I ended, several new steps were taken in order to develop the area of human rights. In 1919, the International Labor Organization was founded (ILO, n.d.). According to Article 23 of the Covenant of the League of Nations, labor rights have started to be protected. When World War II ended, four freedoms were gained: freedom of speech, freedom of religion, freedom from want, and freedom from fear. American exceptionalism became the role model for the entire globe. By UN Charter Articles 55, 56, 61, and 62, human rights are guaranteed. By Article 68, the Commission on Human Rights was founded (UN Charter, 1945).

Figure 3: A Meeting of the League of Nations (Topical Press Agency, 1929).

Main Sources of Human Rights Law

There are various sources that shape international human rights law, such as international conventions and treaties, international customs, general principles of law, and judicial decisions (Simma & Alston, 1992). These sources are classified as primary and secondary sources, and all of them are extremely important for the implementation of human rights rules. These sources are divided into conventional and non-conventional sources. Conventional legislation is a set of rules that come from treaties among states. On the other hand, non-conventional rules can be defined as general principles that are accepted by states around the world (Henkin, 1995). There are common values that are determined by international human rights law, such as equality, dignity, freedom, and solidarity, and non-conventional rules are constructed on these principles (Henkin, 1995).

Figure 4: Word Cloud Representation of Jus Cogens Rules as Accepted by the Global Community of States (Europe's Human Rights Watchdogs, 2014).

As can be seen in the domestic legal systems, there is a hierarchy among the sources of international human rights law as well. Jus Cogens rules are at the top of this hierarchy. These rules can be defined as naturalistic universal rights (Martinez, 2012). These rules are shaped by documents such as the French Declaration on the Rights of Man and Citizens, the Universal Declaration of Human Rights, and other historical sources of law. The Charter of the United Nations (UN Charter) follows the jus cogens rules in this hierarchy. After the Second World War, this Charter was signed by fifty states around the world, and the number of members for this establishment increased during the following years (UN Charter, 1945). The third source of international human rights law is treaties and customs. International customs are shaped by state practices and the common applications of states around the world (opinio uris). Verdicts and legal opinions of international courts such as the European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), the African Court of Justice and Human Rights, and others are also authoritative sources of international human rights law and are placed fourth on the hierarchy (Simma and Alston, 1992). At the bottom of this hierarchy, soft law rules find a place for themselves, and they can be counted as the most non-binding legal rules of international human rights law. In practice, soft law means declarations and guidelines (Lagoutte et al., 2016).

The UN Charter and the UN Human Rights Council

The UN Charter is the fundamental document that establishes the structure of this intergovernmental institution. The preamble of the Charter declares a reformation and definition of fundamental human rights and the dignity of people (UN Charter, 1945). For that reason, in the hierarchy of international human rights law, the UN Charter is the second-most authoritative source for state parties. No convention around the world can include a contrary rule to the UN Charter (UN Charter, 1945). There are several bodies that exist within the working scope of the United Nations (UN): the General Assembly, Security Council, Economic and Social Commission, International Court of Justice, and others. All of these bodies are responsible for the protection of human rights around the world. However, the main organ that is responsible for the protection of human rights according to the UN Charter is the Human Rights Council (UN Human Rights Council, 2006). While it was initially placed under the auspices of ECOSOC, currently, the general assembly oversees its activities. In the Human Rights Council, there are 47 members: 13 from African States, 13 from Asian Pacific States, 8 from Latin American countries, and 13 from Europe. These members are elected by the general assembly (UN Human Rights Council, 2006).

Figure 5: A Photo from the Foundational Event of the UN (Lauren, 2020).

The Human Rights Council is responsible for informing the general assembly about violations of human rights. Each state has a responsibility to report its actions to the Human Rights Council about the enhancement of the human rights situation in their countries. Other states can request a review of the human rights situation in another state by preparing an allegation letter or requesting a country visit. Also, the Human Rights Council itself has the right to make this investigation (UN Human Rights Council, 2006).

The European Convention for the Protection of Human Rights

The continent of Europe is considered a pioneer in the legal codification of human rights. Currently, two authorities regulate and safeguard the protection of human rights: the supranational European Union and the European Council. In 1950, the European Convention for the Protection of Human Rights was signed, and with it, the European Court of Human Rights was established. Today, the court is an independent entity that closely assists the work of the European Council on the protection of human rights (Harris, O'Boyle and Warbrick, 1995). According to Article 1 of the Statute of the Council of Europe, the main aim of the council is to generate unity between member states to safeguard and promote ideas and principles in economics and social relations. Three fundamental values define European heritage: human rights, democracy, and the rule of law.

Figure 6: The Building of the European Court of Human Rights (CoE, 2023).

The European Court of Human Rights can be defined as the fundamental organ of jurisdiction on the European continent regarding violations of human rights. For applications from different countries, there are four types of judicial formation: single judges, committees, and chambers. The Grand Chamber is at the top of ECtHR jurisdiction (Khedairi, 2021). The judges are elected by the Council of Europe (ECtHR, 2023). In addition to the duty of jurisdiction, the court can generate non-binding legal rules as well. Especially when the execution organ of the European Council, the committee of ministers, requests a view of the court about an issue, the court needs to create a doctrine related to this request (Harris, O'Boyle and Warbrick, 1995).

Figure 7: A Meeting of the Committee of Ministers (CoE, 2023).

Conventions Among the States on the Continent of America

In the Americas, 1978 was the year the American Convention on Human Rights entered into force. The convention was adopted by fifteen Latin American countries. The Inter-American Court of Human Rights and the Inter-American Commission of Human Rights were established by inter-American countries as well (Burke-White, 2004). An additional protocol was made in 1988 about social and cultural rights, and a second protocol was made in 1990 about the prevention of the death penalty. In 1991, the Convention to Prevent and Punish Torture was signed by inter-American states. According to this convention, the death penalty can only be applied during wartime (Inter-American Convention to Prevent and Punish Torture, 1991). The Inter-American Commission on Human Rights has several duties identified by inter-American states: developing awareness about human rights, making recommendations to governments, and preparing reports and studies (Inter-American Convention to Prevent and Punish Torture, 1991). The Inter-American Court of Human Rights is located in San Jose, Costa Rica. Only members of the Inter-American Commission on Human Rights may apply to this court; individuals and other legal entities are not conferred the same right (Burke-White, 2004). The court’s duty is to clarify contentious jurisdiction, detect provisional measures, and give advisory opinions to the member states. The most important deficiency of the Inter-American Court of Human Rights is that it does not have the power to enforce its judgments (Burke-White, 2004).

Figure 8: The Courtroom of the Inter-American Court of Human Rights (Elena Forum, 2019).

Conventions Among the African States

In 1981, the African Charter of Human and People’s Rights was signed, and the African Commission on Human and People’s Rights was founded by this treaty. In 2003, the African Court of Justice was founded (Heyns, 2003). The relevant Charter includes articles about civil and political rights, individual rights, individual duties, and the state’s duties. The additional protocol for the African Court of Justice was defined in 1998. In 2008, a new protocol about the foundation of a new court called the African Court of Justice and Human Rights was made. However, this court is still not active to this day, and the protocol is, thus, pending (Heyns, 2003).

Conventions Among Asian States

There are various conventions among Asian states about the protection of human rights. Especially in southeastern Asian nations, numerous treaties have been signed about the fundamental rights of people. In 1993, the Bangkok Declaration of Human Rights was signed among Asian countries and 240 non-governmental organizations. In 2007, the ASEAN member states developed and adopted the ASEAN Charter, itself inclusive of several emphases placed on the rule-based protection of human rights. Not least, the union even set up an intergovernmental commission to further develop and cooperatively protect those rights considered fundamentally unalienable. The commission considers the rights to individual development and to sustainable peace to be paramount (ASEAN, 2012).

Figure 9: The Building of the African Court on Human & Peoples Rights (Pecorella, 2014).

Categorization and Specialties of Fundamental Rights

The core human rights are determined by the main sources of international law, such as the Universal Declaration of Human Rights or the UN Charter. These rights are absolute, and there have to be no limitations, derogations, or reservations against them. These rights have five characteristics in that they are inalienable, -indivisible, -fundamental, -inherent, and -entitled to other rights. In an ideal world, all of these fundamental rights have to be protected by the authorities. They can only be limited during the conditions of a state emergency; however, this limitation has also been limited in itself (Harris, O'Boyle & Warbrick, 1995). The core rights of people are divided into four categories: civil and political rights (first generation), economic, social, and cultural rights (second generation), collective rights (third generation), and digital rights (fourth generation) [Viljoen, 2012]. To honor and facilitate these rights, states have positive and negative obligations. While negative obligations require the absence of obstructive or violative actions, positive obligations are more demanding in that they require activity and measured responses to uphold the enjoyment of rights (Viljoen, 2012).

Right to Life

The right to life is a first-generation right that belongs to the states, and all states have an obligation to take the necessary steps to protect human life. There is also an obligation to refrain from actions that can harm the right to life for states (Harris, O'Boyle & Warbrick, 1995). The protection of the health of individuals is under the protection of the right to life as well. Indeed, all states must take relevant measures to protect the health of individuals and prevent environmental dangers (Amos, 2014, 237). Instead of all these measures, the right to life is not a right that must always be protected. During preventing a terrorist event, protecting the citizens of the state, or during a public emergency, if there is a necessity, state authority has the right to limit the right to life (Harris, O'Boyle & Warbrick, 1995).

Prohibition of Inhuman Treatment and Punishment

Different from the right to life, the prohibition of inhuman treatment and punishment is a right that must not be restricted by public authorities. All preventative measures have to be taken by states against this prohibition; necessary legislation and punishments have to be generated. In other words, the prohibition of torture can be defined as a jus cogens rule (Amos, 2014). Torturing and inhuman treatments such as assaults, psychological interrogation techniques, and the condition of detention can be classified under this prohibition (Harris, O'Boyle & Warbrick, 1995).

Figure 10: Basic Human Rights Determined by International Treaties (Venngage, n.d.).

Prohibition of Slavery and Forced Labor

Prohibition of forced slavery and forced labor is also under the scope of first-generation rights. It is a prohibition that cannot be derogated, even in public emergencies. According to international human rights law, no one shall be held in slavery or work under the circumstances of forced labor (Harris, O'Boyle & Warbrick, 1995). For prison labor and military service, states have a wider margin of leeway. It means that for prison laborers and military services, an enforcement of forced labor can be made by obliging necessary limitations (Harris, O'Boyle & Warbrick, 1995). However, it is not possible to give consent to slavery and servitude around the world; it is a jus cogens rule.

Freedom of Expression

In almost all states that accept the fundamental values of human rights, the right to freedom of expression usually ranks highly. The right to hold an opinion, the right to broadcast and advertise, the right to protest, and the right to receive information can be accepted under the scope of freedom of expression (Amos, 2014). While the term 'expression' may apply to a wide range of applications, it is limited by the principle of reciprocity; it shall not interfere with other people’s freedoms or society’s interests (Hoggart, 1989).

Figure 11: A Trial in the European Court of Human Rights (Euractive, 2023).

The Right to Be Equal Under the Law and the Right to a Fair Trial

The last two fundamental first-generation rights are the right to be equal under the law and the right to a fair trial. Both are considered basic elements of the rule of law. According to the legal codification of the European Union, both international public law and domestic laws have a duty to protect these rights. In general, both rights are supposed to mirror a bulwark of protection available to citizens against statal abuse of power and that wielded by authorities acting within their respective jurisdictions. The rule covers both criminal and civil procedures (Amos, 2014).

Right to Privacy

Everyone has the right to be respected in their private and family lives. The privacy at home, the privacy in the working area, the privacy of family life, and the privacy of social relations can be considered under the scope of this right (Amos, 2014). In addition to all these points, digital privacy has similarly become a focus of this right. Indeed, the capacity of computers to store and combine data has only increased the discursive nature of the article and value proposition for individuals (Hoggart, 1989). Ultimately, though, it is not an absolute right, as lawful and sensible interferences are permitted and even deemed necessary to maintain the social contract.

Conclusion

It is clear that human rights have achieved basic normative and codified attention in international law. Almost all documents and treaties have mirrored similar principles related to content and the protection of human rights. Contemporary legal norms and those derived from past eras have created a beneficial ecosystem for the protection of human rights, which simultaneously continue to thrive in the presence of supportive global and regional intergovernmental and supranational institutions. Yet, fundamental to these rights will in the future be their appropriate enforceability in order to guarantee these principles and further develop the sustainable impact of international human rights law.

Bibliographical References

Amos, M. (2014). Human Rights Law (2nd ed.). Hart Publishing.

ASEAN Community (2012, November 19). ASEAN Human Rights Declaration. Official Webpage of ASEAN. https://asean.org/asean-human-rights-declaration/  

Britannica. (2023, December 16). Declaration of Independence. Encyclopedia Britannica. https://www.britannica.com/topic/Declaration-of-Independence  

Burke-White, W. W. (2004). Human Rights in the Inter-American System. Int'l Stud. Journal, 1, 33.

De Schutter, O. (2019). The Formation of a Common Law of Human Rights. Cambridge University Press. https://doi.org/10.1017/9781780688060.003

ECtHR (2023). Composition of the Court and Election of Judges. European Court of Human Rights Official Webpage. https://www.echr.coe.int/composition-of-the-court#:~:text=A%20Section%20is%20an%20administrative,a%20number%20of%20other%20judges

Finkel, I. (2013). Cyrus Cylinder. IB Tauris.

Harris, D., O'Boyle, M., & Warbrick, C. (1995). Law of the European Convention on Human Rights. ButterWorths.

Henkin, Louis. (1995). Human rights and state sovereignty. Georgia Journal of International and Comparative Law, 25 (Issues & 2), 31-46.

Heyns, C. (2003). The African Regional Human Rights System: the African Charter. Penn State Law Review, 108, 679.

Hoggart, R. (1989). Liberty and Legislation. Frank Cass.

ILO (n.d.). History of the ILO. Official Webpage of International Labour Organization. https://www.ilo.org/global/about-the-ilo/history/lang--en/index.htm#banner

Inter-American Convention to Prevent And Punish Torture. (1991). https://www.oas.org/juridico/english/treaties/a-51.html  

Khedair, N. (2021). The History and the Structure of the European Court of Human Rights. International Journal of Social Science Research and Review, 4(3), 18-27. https://doi.org/http://dx.doi.org/10.47814/ijssrr.v4i3.94  

Lagoutte, S., Gammeltoft-Hansen, T., & Cerone, J. (Eds.). (2016). Tracing the roles of soft law in human rights. Oxford University Press.

Martinez, J. S. (2012). Human Rights and History. Harv. L. Rev. F., 126, 221.

Official Webpage of UN Human Rights Council (2006). Welcome to the Human Rights Council. Ohchr.org. https://www.ohchr.org/en/hr-bodies/hrc/about-council 

UK Parliament Archive (1628). The Petition of Right. UK Parliament Official Webpage. https://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/civilwar/collections/petition-of-right/#:~:text=In%201628%20the%20House%20of,that%20these%20were%20new%20rights  

UN Charter (1945). https://www.un.org/en/about-us/un-charter#:~:text=United%20Nations%20Charter,force%20on%2024%20October%201945  

Uracin, M. (2017). Magna Carta Libertatum - The Contract of Freedom. Istanbul Bar Association.

Viljoen, F. (2012). International Human Rights Law: A Short History. United Nations Official Webpage. https://www.un.org/en/chronicle/article/international-human-rights-law-short-history  

Research Team, I., Estevez, E., & Schmitt, K. R. (2023, December 19). Natural Law in Ethics. Investopedia. https://www.investopedia.com/terms/n/natural-law.asp

Simma, B., & Alston, P. (1992). The sources of human rights law: custom, jus cogens, and general principles. The Australian Year Book of International Law Online, 12(1), 82-108.

Zalta, E. N., & Nodelman, U. (2005, November 9). Locke’s Political Philosophy. Stanford Encyclopedia of Philosophy. Retrieved October 6, 2020, from https://plato.stanford.edu/entries/locke-political/#NatuLawNatuRigh  

Visual Sources