Emergence of international human rights instruments

International human rights law is, on the one hand, part of public international law but is, on the other hand, to a large extent today based on specific international human rights treaties. International human rights law is a branch of international law aimed at ensuring compliance with the obligation of states to respect the fundamental rights and human rights of its citizens⁸⁷, and consists of a body of international rules, procedures and institutions developed to implement it and to promote respect for human rights in all countries on a worldwide basis⁸⁸. The difference between traditional international law and international human rights law is indeed that international human rights conventions limit the sovereignty of States as regards jurisdiction over their citizens, in the same way as national constitutions impose limits on governmental and legislative action. Traditionally, individuals were considered to fall within the exclusive jurisdiction of the State in which they resided. Gradually, the situation started to change already as of the first instruments prohibiting slave trade and early legal doctrines of humanitarian intervention in the 19^th century, although the increase of international human rights law did not start until after the Second World War.⁸⁹ However, as De Schutter warns, there are some limits on the binding force of international human rights law due to the fact that it is addressed at a limited group of subjects of international law instead of all subjects of international law⁹⁰. However, human rights may also be seen as embodying certain collective values which at the same time define the legal interests of individual states⁹¹. Another characteristic of international human rights law is the lack of reci-procity in contrast to other branches of international law, although there are exceptions among human rights treaties⁹². Furthermore, despite the international character, effective implementation of human rights law requires some adherence to the domestic legal systems and law. As pointed out by Meron, the effectiveness of international human rights instruments depends on their observance and implementation by domestic

ju-87 See the Charter of the United Nations of 26 June 1945, Article 1, paragraph 3.

88 Hannum 1994, p.3.

89 Cassese 2005, p. 376. De Schutter 2009, p. 39. Brownlie 1990, p. 564 and 565, as well as 570-572.

Brownlie also draws attention to the creation of the Commission on Human Rights in 1946, entrusted with the function of preparing the texts of the Universal Declaration, the Convention on the Political Rights of Women and the draft covenants. (Ibid. p. 571)

90 De Schutter 2009, p. 40. De Schutter reminds that sceptical views have also been expressed about the binding nature of the human rights obligations as set out in the United Nations Charter, which only bind the States and the UN institutions.

91 See Craven 2000, p. 515.

92 Craven 2000, p. 498. Craven names as one of such exceptions to the idea of non-reciprocity the European Social Charter under which the enjoyment of certain rights is dependent on the nationality of one of the States parties, on the basis of reciprocity. (Ibid. p. 499)

dicial and administrative agencies⁹³. International law does not need to be in a written form, but there are also rules that are considered to constitute customary law, although there is some controversy as to how the evidence of the existence of customary rules is derived. As concluded by De Schutter, declarations or resolutions and identifiable state practice provide some evidence of the commitment of the international community to certain values, whereas inconsistent state practice could speak against it – although even condemnations expressed by states against violations made by other states may provide evidence of customary law⁹⁴. Thus, not even wide adherence to certain rules would tell the entire truth of the opinio juris in case state practice demonstrates flagrant violations of those rules, although certain rules are considered absolutely binding⁹⁵. One must remember, however, that international treaties constitute the clearest evidence of cus-tomary rules in that they codify existing and emerging custom, although this statement entails the problem that treaties only bind the parties thereto and saying that they state customary law would mean that even non-parties would have to accept the contents⁹⁶. Codified rules also strengthen compliance with international law particularly where they provide for monitoring, whereas the possibility for reservations accompanying ratifica-tion weakens their binding force⁹⁷. Today, most rules of international law have already been codified. The same in principle applies to international human rights law⁹⁸. It is widely accepted that the rights set out in the Charter of the United Nations and the Universal Declaration of Human Rights have become part of customary international

93 Meron 1989, p. 80.

94 De Schutter 2009, p. 41-43.

95 Certain human rights norms may be considered to have a jus cogens character. De Schutter suggests that instead of jus cogens, one could also speak of the erga omnes character of those obligations.

Certain rights are of such a fundamental nature that all states have an interest of protecting them as an obligation towards the international community as a whole (De Schutter 2009, p. 51).

96 Meron 1989, p. 80. There would also be further consequences, including the question of jurisdiction of international monitoring bodies over non-parties and access to international law remedies.

(Ibid. p. 80 and 81)

97 It is to be noted, however, that the regime of reservations does not fit that well in the context of human rights conventions in that the essential effect of reservations and of the acceptance thereof or objection thereto is between the State entering the reservation and that accepting it or objecting to it. (See e.g. Craven 2000, p. 495)

98 Cassese 2005, p. 393 and 394. According to Cassese, the customary human rights norms consist, in particular, of certain important norms including the norm forbidding grave, repeated and systematic violations of human rights; those banning slavery, genocide and racial discrimination;

the norm prohibiting forcible denial of the right of peoples to self-determination; and the rule banning torture. In his view, they constitute rules binding on States irrespective of whether they are included in a convention that has been ratified by those States. Further, in his view, there are rules of customary international law requiring States to intervene in gross and large-scale viola-tions of human rights to discontinue such violaviola-tions. (Ibid.) It is to be observed that all those rules have been codified at least in one international convention, although not all of them have been ratified by all States.

law⁹⁹. A large part of those rights, in turn, have later been included in other binding human rights instruments, including the European Convention on Human Rights.

The most effective international rules of human rights law are thus included in binding multilateral conventions. There is also a large body of instruments that rather have the character of recommendations than that of binding norms. The Universal Declaration of Human Rights may be placed between recommendations and conventions, insofar as the legal effect is concerned¹⁰⁰. In general, an international human rights convention is a treaty within the meaning of the Vienna Convention on the Law of Treaties¹⁰¹ in the same way as any other treaty entered into with other subjects of international law (states or international organisations), with an intention to create obligations under international law¹⁰². However, one distinctive feature is that human rights conventions create obligations on state vis-à-vis their citizens, instead of merely creating obligations towards other states parties to the convention concerned.

The European Convention on Human Rights is the international human rights instrument subject to this study, although it is not the only one playing a role in the national case law applying fundamental or human rights provisions but is even today accompanied by other instruments at the United Nations level. The historical devel-opments leading to the drafting of the European Convention on Human Rights and their meaning for the English legal system have been described by Francis Bennion – sarcastically but with a brilliant sense of humour – as follows:

“[…] unlike the legislatures of other nations, Britain’s Westminster Parliament was not in any way confined by the detailed conditional clauses of a written constitution, usually written by different people in the distant past and required in the present to be construed by uncontrolled and unelected judges. The ideal situation of the British lasted for a long while, but was too good to last for ever. As usual, the path to Hell was paved with good intentions. […] Who would have expected that the victors in a war against opponents of democracy would engineer what was, as it turned out, a dire reverse for democracy? Yet history teems with such quirks. Things rarely turn out the way well-meaning people expect.”¹⁰³

99 Meron 1989, p. 82.

100 For details, see Sohn and Buergenthal 1973, p. 518-522.

101 Vienna Convention on the Law of Treaties (1969), UNTS vol. 1155, p. 331, Article 2, paragraph 1, point (a).

102 This distinguishes international treaties from agreements between states governed by domestic law (see Aust 2013, p. 17). Such agreements include instruments with a variety of denominations, such as Memoranda of Understanding, concluded typically directly between the competent authorities, with a view to facilitating cooperation and leaving their implementation to be arranged within the framework of existing national provisions of legislation.

103 Bennion 2009, p. 141 and 142.

That is perhaps one of the most radical views expressed by legal scholars, but of course, is not the whole truth. What is true is that the European Convention on Human Rights is a product of peoples who wished to prevent the atrocities leading to World War II from happening again, and most certainly, the intentions were good. However, the Convention and its language is not exclusively a product of victors of World War II but should rather be seen as a product of longer historical developments as will be given account of below. At the same time with the drafting of the European Conven-tion on Human Rights, similar efforts were taken at the internaConven-tional level within the framework of the United Nations in an effort to strengthen the international protection of human rights, and largely for the same historical reasons.

The history of international agreements may be traced back to ancient times but, as Bunn-Livingstone points out, the ancient agreements would hardly meet the criteria set for treaties as we understand them today. The first treaty considered to represent international law in the eyes of the Western world is perhaps the Treaty of Westphalia of 1648.¹⁰⁴ In this perspective, and as mentioned in the foregoing, the first interna-tional instrument for the protection of human rights was adopted rather late. Until World War II, the responsibility for such protection was considered to belong to the domestic affairs of states, and no international interference was considered appropri-ate. However, the atrocities of World War II, particularly those under the German national socialist rule¹⁰⁵, changed the attitudes in this respect. The international efforts to create instruments and mechanisms for the purpose of ensuring universal respect for human rights and for preventing the atrocities of World War II from happening again were launched by the Allied Powers. It was decided that the protection of human rights and fundamental freedoms should become one of the main functions of the new United Nations organisation (UN). The United Nations Charter provides for a general obligation of respect for human rights, as well as for the establishment of a Human Rights Commission to implement this task. However, it is to be noted that the political philosophy and the human rights agenda of the Allied Powers largely determined the selection of human rights to be protected through international instruments and the

104 For more details, see Bunn-Livingstone 2002, p. 78-80.

105 See e.g. Collected Edition of the Travaux Préparatoires, Vol. I, in which the statement of France provides an example of the concerns caused by the Second World War (p. 40): “… Three things still threaten our freedom. The first threat is the eternal reason of State. […] Montesquieu said:

“Whoever has power, is tempted to abuse it.” […] Then there is the second threat: Fascism and Hitlerism have unfortunately tainted European public opinion. These doctrines of death have infiltrated into our countries. They have left their mark. They have poisoned certain sections of public opinion. Racialism did not die out with Hitler. […] Finally, and above all, freedom is in danger in our countries […] because of the economic and social conditions of the modern world.”

mechanisms of protection.¹⁰⁶ The idea of drafting a Universal Declaration of Human Rights was presented at the same conference in which the Charter of the United Na-tions was drafted, but more detailed consideration was needed and the Declaration was finally adopted in 1948¹⁰⁷.

As is pointed out by Hannum, the UN involvement in the protection of human rights has rapidly expanded since then. New international instruments have been adopted throughout the existence of the United Nations.¹⁰⁸ Such instruments include, among others, the Universal Declaration of Human Rights¹⁰⁹ and the Convention on the Prevention and Punishment of the Crime of Genocide¹¹⁰ in 1948, the International Convention on the Elimination of All Forms of Racial Discrimination¹¹¹ in 1965, the International Covenant on Civil and Political Rights¹¹² and the International Covenant on Economic, Social and Cultural Rights¹¹³ in 1966, the Convention on the Elimi-nation of All Forms of DiscrimiElimi-nation against Women¹¹⁴ in 1979, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment¹¹⁵ in 1984, the Convention on the Rights of the Child¹¹⁶ in 1989, and, most recently, the Convention on the Rights of Persons with Disabilities¹¹⁷ and the International Convention for the Protection of all Persons from Enforced Disappearance¹¹⁸ in 2006.

This international involvement was also reflected at the regional level, in particular in Europe. The European Convention on the Protection of Human Rights and Funda-mental Freedoms (European Convention on Human Rights) was adopted shortly after the adoption of the Universal Declaration.

An international convention is the result of a complex process of negotiations and drafting, involving a variety of sources for the formulation of provisions. Among

106 Sohn and Buergenthal 1973, p. 506 and 507. Hannum 1994, p. 4 and 5. Wesel 2010, p. 570.

White & Ovey 2010, p.3. The instruments resulting from the work of the Allied Powers include, apart from the Charter of the United Nations, the Universal Declaration of Human Rights and the Convention on the Prohibition of Genocide. In the view of Cassese, the United Nations Charter was the turning point in the protection of human rights, as it constitutes the basis for internationally binding human rights obligations. (Cassese 2005, p. 378.) See also Brownlie 1990, p. 569.

107 Sohn and Buergenthal 1973, p. 514 and 515.

108 Hannum 1994, p. 5.

109 United Nations General Assembly Resolution 217A (III) of 10 December 1948.

110 UNTS vol. 78, p. 277.

111 UNTS vol. 660, p. 195.

112 UNTS vol. 999, p. 171, and vol. 1057, p. 407.

113 UNTS vol. 993, p. 3.

114 UNTS vol. 1249, p. 13.

115 UNTS vol. 1465, p. 85.

116 UNTS vol. 1577, p. 3.

117 UNTS vol. 2515, p. 3.

118 UNTS vol. 2715, Doc. A/61/448.

these sources, both other international instruments and national legislations play an important role. States participating in the negotiations contribute to the drafting by proposing different wordings, often containing elements of their own legislations. This is very often due to the fact that for a treaty provision to be acceptable for a negotiat-ing State, it must fit in its national legal system when implemented. It is in principle possible that the wording of the national legislation of a negotiating State ends up in the text of a provision of the international treaty as such, although it is more likely to be adjusted in the process of the negotiations based on the views and wishes of all the States involved. The final result is a compromise of those views and wishes, which is also reflected in the language of the treaty in question. The same holds true for inter-national human rights conventions.

2.3 Development of the language of international human rights law The language of international treaties shares much in common with the language of law in general, but is still a branch of its own within the general concept of legal language.

The language used in international treaties is a result of negotiations between the contracting states, containing elements of the legal systems of two or more states with regard to both the language and the contents. Although an examination of the texts of agreements reveals that the language of treaties contains the same kinds of concepts and expressions as any legislative texts, the final outcome is a political compromise, which has its impact on the language. Therefore, it is typical of treaties that clear and precise legal language may often give way for intentionally ambiguous formulations.

The most usual original language of international treaties today is English, but this has not always been the case. In the Middle Ages, the language of international rela-tions and treaties was Latin, which was replaced with national languages along with the rise of nation states. At first, the prevailing language was French, which remained for a long time the language of diplomacy and aristocracy. Until the end of the Second World War, French enjoyed an equal position with English e.g. in the League of Na-tions and in the Permanent Court of International Justice. French as the language of diplomatic and international relations was only overthrown by English after the Second World War.¹¹⁹ The position of English as the language of international relations was further strengthened by the rise of the number of international organisations.¹²⁰ The number of different types of international organisations has increased since the 19^th century as inter-state relations increased along with industrialisation and increase in international trade. The increased international relations made it necessary to create

119 See Hardy 1962, p. 72, and Tabory 1980, p. 4 and 5.

120 Hardy 1962, p. 72.

an appropriate framework for the adoption of certain common rules and standards.¹²¹ In most international organisations, English is at least one of the official languages.

In the United Nations, which replaced the League of Nations, English and French remained first the working languages, although the status of an official language was in 1945 given to Chinese, Russian and Spanish as well. These three languages became working languages by 1973, and in addition the status of an official language and working language was also given to Arabic.¹²²

Although in most international organisations today, including in Europe, English today is the mostly used language of diplomacy and the most usual language of drafting of treaties, in formal terms it enjoys an equal position along with one or more other languages, and particularly multilateral conventions are usually drafted in two or more authentic languages, all texts being equally authentic. In fact, international conven-tions have for a long time been drafted in several languages and their number has steadily grown since the end of the First World War¹²³. The fact that an international organisation has several languages most often means that even treaties negotiated under the auspices of that organisation are drafted in several languages – the choice of authentic languages seems to coincide with the official languages of the organisation in question. European conventions concluded within the framework of the Council of Europe, including the European Convention on Human Rights, are authentic in two languages, English and French. United Nations conventions are today done in the six

Although in most international organisations today, including in Europe, English today is the mostly used language of diplomacy and the most usual language of drafting of treaties, in formal terms it enjoys an equal position along with one or more other languages, and particularly multilateral conventions are usually drafted in two or more authentic languages, all texts being equally authentic. In fact, international conven-tions have for a long time been drafted in several languages and their number has steadily grown since the end of the First World War¹²³. The fact that an international organisation has several languages most often means that even treaties negotiated under the auspices of that organisation are drafted in several languages – the choice of authentic languages seems to coincide with the official languages of the organisation in question. European conventions concluded within the framework of the Council of Europe, including the European Convention on Human Rights, are authentic in two languages, English and French. United Nations conventions are today done in the six