Human Rights and Its

Historical Evolution
Human Rights
• Human rights are the basic rights and freedoms that belong to every
person in the world, from birth until death. These rights are universal
and inherent to all human beings regardless of nationality, ethnicity,
religion, gender or any other status.
• Human rights include a broad range of protections such as the right to
life, liberty and security; freedom of thought, expression and religion;
and the right to work, education and an adequate standard of living.
• They are interrelated, interdependent and indivisible, meaning the
improvement of one right facilitates the advancement of the others.
Key principles
• The concept of human rights rests on several key principles:
• Universality and Inalienability: Human rights apply to everyone, everywhere and cannot
be taken away, except in specific situations according to due process.
• Interdependence and Indivisibility: All human rights are interrelated and indivisible. The
improvement of one right facilitates the advancement of the others. Likewise, the
deprivation of one right adversely affects the others.
• Equality and Non-discrimination: Every individual is entitled to human rights without
discrimination of any kind.
• Participation and Inclusion: All people have the right to participate in and access
information relating to the decision-making processes that affect their lives and well-being.
• Accountability and Rule of Law: States and other duty-bearers are answerable for the
observance of human rights. When they fail to observe these rights, aggrieved parties are
entitled to appropriate redress.
Three generations of
international human rights law
• Human rights activism can be described as a struggle to ensure that the gap
between human rights and human rights law is narrowed down in order to
ensure the full legal recognition and actual realization of human rights.
• History shows that governments do not generally grant rights willingly but that
rights gains are only secured through a successful challenge to absolutist
authority.
• Following on the Magna Carta, which set limits on the powers of royal
Government in thirteenth century England, the 1776 American Declaration of
Independence and the 1789 French Declaration des droits de l'Homme et de du
citoyen (Declaration of the Rights of Man and Citizen) were landmarks of how
revolutionary visions could be transformed into national law and made into
justiciable guarantees against future abuse.
• The traditional categorization of three generations of human rights, used in both national and
international human rights discourse, traces the chronological evolution of human rights as an
echo to the cry of the French revolution:
• Liberté (freedoms, "civil and political" or "first generation" rights),
• Egalité (equality, "socio-economic" or "second generation" rights), and
• Fraternité (solidarity, "collective" or "third generation" rights).
• In the eighteenth and nineteenth centuries, the struggle for rights focused on the liberation from
authoritarian oppression and the corresponding rights of free speech, association and religion and
the right to vote.
• With the changed view of the State role in an industrializing world, and against the background of
growing inequalities, the importance of socio-economic rights became more clearly articulated.
• With growing globalization and a heightened awareness of overlapping global concerns, especially
due to extreme poverty in some parts of the world, "third generation" rights, such as the rights to
a healthy environment, to self-determination and to development, have been adopted.
Global level
• For many centuries, there was no international human rights law regime in
place.
• In fact, international law supported and colluded in many of the worst
human rights atrocities, including the Atlantic Slave Trade and colonialism.
• It was only in the nineteenth century that the international community
adopted a treaty abolishing slavery.
• The first international legal standards were adopted under the auspices of
the International Labour Organization (ILO), which was founded in 1919 as
part of the Peace Treaty of Versailles.
• ILO is meant to protect the rights of workers in an ever-industrializing
world.
• After the First World War, tentative attempts were made to establish a human rights system under
the League of Nations.
• For example, a Minority Committee was established to hear complaints from minorities, and a
Mandates Commission was put in place to deal with individual petitions of persons living in
mandate territories.
• However, these attempts had not been very successful and came to an abrupt end when the
Second World War erupted. It took the trauma of that war, and in particular Hitler's crude racially-
motivated atrocities in the name of national socialism, to cement international consensus in the
form of the United Nations as a bulwark against war and for the preservation of peace.
• The core system of human rights promotion and protection under the United Nations has a dual
basis: the UN Charter, adopted in 1945, and a network of treaties subsequently adopted by UN
members.
• The Charter-based system applies to all 192 UN Member States, while only those States that have
ratified or acceded to particular treaties are bound to observe that part of the treaty-based (or
conventional) system to which they have explicitly agreed.
Charter-based system
• This system evolved under the UN Economic and Social Council, which set up the Commission on Human Rights, as
mandated by article 68 of the UN Charter.
• The Commission did not consist of independent experts, but was made up of 54 governmental representatives
elected by the Council, irrespective of the human rights record of the States concerned.
• As a consequence, States earmarked as some of the worst human rights violators served as members of the
Commission.
• The main accomplishment of the Commission was the elaboration and near-universal acceptance of the three major
international human rights instruments:
• the Universal Declaration of Human Rights, adopted in 1948,
• the International Covenant on Civil and Political Rights (ICCPR) and
• the International Covenant on Economic, Social and Cultural Rights (ICESCR), the latter two adopted in 1966.
• As the adoption of those two separate documents indicates, the initial idea of transforming the Universal
Declaration into a single binding instrument was not accomplished, mainly due to a lack of agreement about the
justiciability of socio-economic rights.
• As a result, individual complaints could be lodged, alleging violations by certain States of ICCPR, but not so with
ICESCR.
• The normative basis of the UN Charter system is the Universal Declaration of Human Rights, adopted on 10
December 1948, which has given authoritative content to the vague reference to human rights in the UN
Charter.
• Although it was adopted as a mere declaration, without a binding force, it has subsequently come to be
recognized as a universal yardstick of State conduct. Many of its provisions have acquired the status of
customary international law.
• Faced with allegations of human rights violations, particularly in apartheid South Africa, the Commission had to
devise a system for the consideration of complaints.
• Two mechanisms emerged, the "1235" and "1503" procedures, adopted in 1959 and 1970, respectively, each
named after the Economic and Social Council resolution establishing them. Both mechanisms dealt only with
situations of gross human rights violations.
• The difference was that the "1235" procedure entailed a public discussion while "1503" remained confidential.
• In order to fill the gap in effective implementation of human rights, a number of special procedures were
established by the Commission. Unique procedures take the form of special rapporteurs, independent experts
or working groups looking at a particular country (country-specific mandate) or focusing on a thematic issue
(thematic mandate).
• Leapfrogging a few decades to 2005, in his report In Larger Freedom: Towards
Development, Security and Human Rights for All, the former UN Secretary-General,
Kofi Annan, called for the replacement of the Commission by a smaller, permanent
and human rights-compliant Council, able to fill the credibility gap left by States
that used their Commission membership "to protect themselves against criticism
and to criticize others".1
• The major reason for replacing the Commission was the very selective way in which
it exercised its country-specific mandate, due mainly to the political bias of
representatives and the ability of more powerful countries to deflect the attention
away from themselves and those enjoying their support.
• In 2006, the General Assembly decided to follow the Secretary-General's
recommendation, creating the Human Rights Council as a replacement to the
Commission on Human Rights.2
• There are some important differences between the former Commission on Human Rights and
the current Human Rights Council.
• As a subsidiary organ of the General Assembly, the Council enjoys an elevated status
compared to the Commission, which was a functional body of the Economic and Social
Council. It has a slightly smaller membership (47 States) and its members are elected by an
absolute majority of the Assembly (97 States).
• To avoid prolonged dominance by a few States, members may be elected only for two
consecutive three-year terms.
• The Council serves as a standing or permanent body, which meets regularly, not only for
annual "politically charged six-week sessions" as the Commission did.
• Following the more human rights-sensitive selection criteria, the list of States elected by the
Assembly contrasts with countries which, in 2006, served on the Commission. The Assembly
may, by a two-thirds majority vote, suspend a member that engages in gross and systematic
human rights violations.
• The Human Rights Council retained most of the special procedures, including the confidential
"1503" (now called the "compliant procedure"), and introduced the Universal Peer Review (UPR).
• Starting in April 2008, one third of UN Member States has undergone this process. The UPR sUPR
hows similarities with the African Peer Review Mechanism which has been set up under the New
Partnership for Africa's Development (NEPAD).
• Apart from the Universal Declaration on Human Rights, the General Assembly adopted numerous
other declarations. When sufficient consensus emerges between States, declarations may be
transformed into binding agreements.
• It is revealing that the required level of agreement is lacking on crucial issues, such as the
protection of non-hegemonic citizenship. The two relevant declarations – the Declaration on the
Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, adopted in 1992, and
the Declaration on the Rights of Indigenous Peoples, adopted in 2007, have not been translated
into binding instruments. The same is true of the Declaration on the Right to Development,
which was adopted in 1986.
Treaty-based system
• The treaty-based system developed even more rapidly than the
Charter-based system.
• The first treaty, adopted in 1948, was the Convention on the
Prevention and Punishment of the Crime of Genocide, which
addressed the most immediate past experience of the Nazi Holocaust.
• Since then, a huge number of treaties have been adopted, covering a
wide array of subjects, eight of them on human rights -- each
comprising a treaty monitoring body -- under the auspices of the
United Nations.
• The first, adopted in 1965, is the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD), followed by ICCPR and ICESCR in 1966.
• The international human rights regime then started to move away from a generic focus, shifting its attention
instead to particularly marginalized and oppressed groups or themes:
• the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979;
• the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984);
• the Convention on the Rights of the Child (1989);
• the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families (1990); and
• the Convention on the Rights of Persons with Disabilities (2006).
• The latest treaty is the International Convention for the Protection of All Persons from Enforced
Disappearances (ICED), also adopted in 2006 but yet to enter into force.
• With the adoption of an Optional Protocol to ICESCR in 2008, allowing for individual complaints regarding
alleged violations of socio-economic rights, the UN treaty system now also embodies the principle that all
rights are justiciable.
Office of the UN High
Commissioner
• Twenty years after the adoption of the Universal Declaration, the first International Conference on Human Rights
was held in 1968 in Teheran.
• As the world was at that stage caught in the grip of the cold war, little consensus emerged and not much was
achieved. The scene was very different when the second world conference took place in Vienna in 1993.
• The cold war had come to an end, but the genocide in Bosnia and Herzegovina was unfolding. Against this
background, 171 Heads of State and Government met and adopted the Vienna Declaration and Programme of
Action.
• It reaffirmed that all rights are universal, indivisible and interdependent. Several resolutions adopted there were
subsequently implemented, including the adoption of an Optional Protocol to CEDAW and the establishment of
the Office of the United Nations High Commissioner for Human Rights, with the first High Commissioner (José
Ayala Lasso) elected in 1994.
• The High Commissioner has the major responsibility for human rights in the United Nations. The increasingly
important human rights field presence in ratcheted countries also falls under this Office.
• Other conferences have also highlighted important issues, such as racism and xenophobia, which were discussed
at the 2001 World Conference Against Racism, held in Durban, South Africa. This culminated in the adoption of the
Durban Declaration and Programme of Action. A review conference to assess progress in the implementation of
the Declaration took place in April 2009.
Regional level
• Since the Second World War, three regional human rights regimes -- norms and
institutions that are accepted as binding by States -- have been established.
• Each of these systems operates under the auspices of an intergovernmental
organization or an international political body. In the case of the European system --
the best of the three -- it is the Council of Europe, which was founded in 1949 by 10
Western European States to promote human rights and the rule of law in post-
Second World War Europe, avoided a regression into totalitarianism and served as a
bulwark against Communism.
• The Organization of American States (OAS) was founded in 1948 to promote regional
peace, security and development.
• In Africa, a human rights system was adopted under the auspices of the Organization
for African Unity (OAU), which was formed in 1963 and transformed in 2002 into the
African Union (AU).
• In each of the three systems, the substantive norms are set out in one principal treaty.
The Council of Europe adopted its primary human rights treaty in 1950: the European
Convention of Human Rights and Fundamental Freedoms.
• Incorporating the protocols adopted thereto, it includes mainly "civil and political"
rights, but also provides for the right to property. All 47 Council of Europe members
have become party to the European Convention.
• OAS adopted the American Convention on Human Rights in 1969, which has been
ratified by 24 States. The American Convention contains rights similar to those in the
European Convention but goes further by providing for a minimum of "socio-
economic" rights.
• In contrast to these two treaties, the African Charter, adopted by OAU in 1981,
contains justiciable "socio-economic" rights and elaborates on the duties of individuals
and the rights of peoples. All AU members are parties to the African Charter.
• The way in which the principal treaty is implemented or enforced differs in each region.
• In an evolution spanning many decades, the European system of implementation,
operating out of Strasbourg, France, developed from a system where a Commission
and a Court co-existed to form a single judicial institution. The European Court of
Human Rights deals with individual cases.
• A dual model is in place in the Americas, consisting of the Inter-American Commission,
based in Washington, D.C., and the Inter-American Court of Human Rights, based in
San José, Costa Rica.
• Individual complainants have to submit their grievances to the Inter-American
Commission first; thereafter, the case may proceed to the Inter-American Court of
Human Rights.
• The Commission also has the function of conducting on-site visits. After some recent
institutional reforms, the African system now resembles the Inter-American system.
• Fledgling Arab and Muslim regional systems have also emerged under the League of Arab States and the Organization of
the Islamic Conference (OIC). According to the Islamic world view, the Koran and other religious sources play a dominant
role in the regulation of social life.
• The League of Arab States was founded in terms of the Pact of the League of Arab States of 1945. Its overriding aim is to
strengthen unity among Arab States by developing closer links between its members. The Pact emphasizes the
independence and sovereignty of its members, but no mention is made in its founding document of either the contents or
principles of human rights.
• At the Teheran World Conference in 1968, some Arab States managed to have the position of Arabs in the territories
occupied by Israel included in the agenda and successfully articulated it as a human rights issue.
• This created awareness of human rights among the Arab States in the aftermath of a number of defeats at the hands of
Israel in 1967. However, at the Teheran Conference and thereafter, the commitment of the Arab League to human rights
was primarily on directing criticism against Israel over its treatment of the inhabitants in Palestine and other occupied
areas.
• In 1968, a regional conference on human rights was held in Beirut, where the Permanent Arab Commission on Human
Rights (ACHR) was established. Since inception, the ACHR has been a highly politicized body, with its political nature
accentuated by the method of appointment. The Commission does not consist of independent experts, as in many other
international human rights bodies, but of government representatives. On 15 September 1994, the Council of the League
of Arab States adopted the Arab Charter on Human Rights, whose entry into force, which required seven ratifications, was
reached in 2008.
• OIC, established in 1969, aims at the promotion of Islamic solidarity among the 56 Member States
and works towards cooperation in the economic, cultural and political spheres.
• The major human rights document, adopted in Cairo in 1990 under this framework, is the Cairo
Declaration on Human Rights in Islam, which is of a declamatory nature only. As its title indicates,
and given the aims of OIC, the declaration is closely based on the principles of the Shari'ah.
• In 2004, OIC adopted a binding instrument with a specific focus: the Covenant on the Rights of the
Child in Islam. This Convention is open for ratification and will enter into force after 20 OIC member
States have ratified it. Although the Convention provides for a monitoring mechanism -- the Islamic
Committee on the Rights of the Child -- its mandate is only vaguely drafted.
• Overlapping to some extent with the Muslim world, the heterogeneous Asian region stretches from
Indonesia to Japan, comprising a diverse group of nations. Despite some efforts by the United
Nations, no supranational human rights convention or body has been established in the Asia-Pacific
region.
• In the absence of an intergovernmental organization serving as a regional umbrella that unites all
the diverse States in this region, a regional human rights system remains unlikely.
Sub-regional level
• In more recent times, the sub-regional level has emerged as another site for human rights struggle, particularly in Africa.
As a result of a weak regional system under the African Union, a number of African sub-Regional Economic Communities
(RECs) emerged from the 1970s:
• most prominently, the Economic Community of West African States, the Common Market for Eastern and Southern Africa,
the Southern African Development Community (SADC) and
• the East African Community (EAC).
• Although these RECs are primarily aimed at subregional economic integration, and not at the realization of human rights,
there is an inevitable overlap in that their aims of economic integration and poverty eradication are linked to the
realization of socio-economic rights.
• In a number of the founding treaties of RECs, human rights are given explicit recognition as being integral to the
organizations' aims. By creating subregional courts with an implicit, or sometimes explicit, mandate to deal with human
rights cases, it is apparent that these economic communities have become key role-players in the African regional human
rights system.
• Two decisions of subregional courts illustrate the growing significance of RECs to human rights protection. In a case
brought against Uganda, it was contended that Uganda violated the EAC Treaty when it re-arrested 14 accused persons
after they had been granted bail.3
• The Court, in 2007, held that Uganda had violated the rule of law doctrine, as enshrined among the fundamental principles
governing EAC.
• In its first decision on the merits of a case, delivered in November 2008, 4 the SADC Tribunal held that it
had jurisdiction, on the basis of the SADC Treaty, to deal with the acquisition of agricultural land by the
Zimbabwean Government, carried out under an amendment to the Constitution (Amendment 17).
• The Tribunal further found that, as it targeted white farmers, the Zimbabwean land reform programme
violated article 6(2) of the SADC Treaty, which outlaws discrimination on the grounds of race, among
other factors.
• As to the remedial order, the Tribunal directed Zimbabwe to protect the possession, occupation and
ownership of lands belonging to applicants and pay fair compensation to those whose land had
already been expropriated.
• Promising developments towards subregional human rights protection have also recently occurred in
the Association of Southeast Asian Nations (ASEAN), bringing together the founding States of
Indonesia, Malaysia, Singapore, Thailand and the Philippines.
• Although ASEAN was established in 1967, a formal founding treaty (the ASEAN Charter) was adopted
only in 2007. The Charter envisages the establishment of an ASEAN human rights body -- a process
that is still underway.
Not by States Alone
• Advances in human rights are not dependent only on States. Non-governmental
organizations have been very influential in advancing awareness on important
issues and have prepared the ground for declarations and treaties subsequently
adopted by the United Nations.
• The role of civil society is of particular importance when the contentiousness of an
issue inhibits State action. The Yogyakarta Principles on the Application of
International Human Rights Law in relation to Sexual Orientation and Gender
Identity is a case in point.
• Although it was adopted in November 2006 by 29 experts from only 25 countries,
the 29 principles contained in the document -- related to State obligations in
respect of sexual orientation and gender identity -- are becoming an internationally
accepted point of reference and are likely to steer future discussions.
• The international human rights law landscape today looks radically different
from 60 years ago when the Universal Declaration was adopted. Significant
advances have been made since the Second World War in expanding the
normative reach of international human rights law, leading to the proliferation
of human rights law at the international level.
• Over the last few decades, however, attention has shifted to the implementation
and enforcement of human rights norms, to the development of more secure
safety nets and to a critical appraisal of the impact of the norms.
• Greater concern for human rights has also been accompanied with greater
emphasis on the individual liability of those responsible for gross human rights
violations in the form of genocide, crimes against humanity and war crimes.
• The creation of international criminal tribunals, including the International Criminal
Court in 1998, constitutes a trend towards the humanization of international law.
• The further juridification of international human rights law is exemplified by the
establishment of more courts, the extension of judicial mandates to include human
rights, and the unequivocal acceptance that all rights are justiciable.
• With the adoption of the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights, there is much clearer acceptance of the principle of
indivisibility under international human rights law.
• However, the constant evolution of the international human rights regime depends
greatly on non-State actors, as is exemplified by their role in advocating for and
preparing the normative ground for the recognition of the rights of "sexual minorities".
• There is no doubt that the landscape is to undergo dramatic changes in the next 60
years.