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The Universal Declaration of Human Rights (UDHR) was adopted without dissent by the UN General Assembly on December 10, 1948. The catalogue of rights set out in it is scarcely less than the sum of most of the important traditional political and civil rights of national constitutions and legal systems, including equality before the law; protection against arbitrary arrest; the right to a fair trial; freedom from ex post facto criminal laws; the right to own property; freedom of thought, conscience, and religion; freedom of opinion and expression; and freedom of peaceful assembly and association. Also enumerated are such economic, social, and cultural rights as the right to work, the right to form and join trade unions, the right to rest and leisure, the right to a standard of living adequate for health and well-being, and the right to education.
The UDHR, it should be noted, is not a treaty. It was meant to proclaim “a common standard of achievement for all peoples and all nations” rather than enforceable legal obligations. Nevertheless, a number of its provisions have acquired a status juridically more important than originally intended, a reflection of its wide use, even by national courts, as a means of judging compliance with human rights obligations under the UN Charter. It is also one of the instruments constituting the International Bill of Human Rights.
The International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was opened for signature on December 16, 1966, and entered into force on January 3, 1976. Also part of the International Bill of Human Rights, it elaborates upon most of the economic, social, and cultural rights set forth in the Universal Declaration of Human Rights, including, among others, the right to work, the right to form and join trade unions, the right to health, and the right to education. Unlike its companion agreement, the International Covenant on Civil and Political Rights, however, generally this covenant, sometimes called a “promotional convention,” was not intended for immediate implementation, the state parties having agreed only “to take steps” toward “achieving progressively the full realization of the rights recognized in the…Covenant,” and then subject to “the maximum of [their] available resources.” One obligation, however, was subject to immediate application: the prohibition of discrimination in the enjoyment of the rights enumerated on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, and birth or other status. Also, the international supervisory measures that apply to the ICESCR oblige the state parties to report to the UN Economic and Social Council on the steps they have adopted and on the progress they have made in achieving the realization of the enumerated rights. In 2008 the adoption of an Optional Protocol led to the creation of an individual-complaints mechanism for the ICESCR—the Committee on Economic, Social and Cultural Rights—which was comparable to the Human Rights Committee of the International Covenant on Civil and Political Rights..
The International Covenant on Civil and Political Rights and Its Optional Protocols
The International Covenant on Civil and Political Rights (ICCPR), likewise a part of the International Bill of Human Rights, was opened for signature on December 19, 1966, and entered into force on March 23, 1976. Just as the International Covenant on Economic, Social and Cultural Rights elaborates upon most of the economic social, and cultural rights enumerated in the Universal Declaration of Human Rights, so the ICCPR elaborates upon most of the civil and political rights set forth in the Universal Declaration of Human Rights, including the right to nondiscrimination but excluding the right to own property and the right to asylum. The covenant also designates several rights not listed in the Universal Declaration of Human Rights, among them the right of all peoples to self-determination and the right of ethnic, religious, and linguistic minorities to enjoy their own culture, to profess and practice their own religion, and to use their own language. To the extent that the Universal Declaration of Human Rights and the covenant overlap, however, the latter is understood to explicate and help interpret the former.
In addition, the covenant calls for the establishment of a Human Rights Committee, comprising persons serving in their individual expert capacities, to study reports submitted by the state parties on measures they have adopted to give effect to the rights recognized in the covenant. For state parties that have expressly recognized the competence of the committee in this regard, the committee also may respond to allegations by one state party that another state party is not fulfilling its obligations under the covenant. If the committee is unable to resolve the problem, the matter is referred to an ad hoc conciliation commission, which eventually reports its findings on all questions of fact, plus its views on the possibilities of an amicable solution. State parties that become party to the covenant’s First Optional Protocol further recognize the competence of the Human Rights Committee to consider and act upon communications from individuals claiming to be victims of covenant violations, provided that the respondent state has recognized the competence of the committee in this regard and that domestic remedies have been exhausted—emulating the legal standing given to individuals before the UN Commission on Human Rights after 1967.
Other treaty-based organs within the UN system that are similarly empowered to consider grievances from individuals in a quasi-judicial manner are the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on Torture, the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of Persons with Disabilities, and the Committee on Enforced Disappearances. Additionally, the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and the Optional Protocol to the Convention on the Rights of the Child contain provisions for individual complaints that are not yet operational.
The Second Optional Protocol of the International Covenant on Civil and Political Rights, which is aimed at abolishing the death penalty worldwide, was adopted in 1989 and entered into force in 1991. The protocol has been favourably received in most of the countries of western Europe and in many countries in the Americas, though not in the United States.
Other UN human rights conventions and declarations
Numerous other human rights treaties drafted under UN auspices address a broad range of concerns. Supplementing the ICCPR and ICESCR considered above, the Office of the High Commissioner for Human Rights lists several other “core international human rights instruments,” including the 1965 International Convention on the Elimination of All Forms of Racial Discrimination; the 1979 Convention on the Elimination of All Forms of Discrimination against Women; the 2002 Optional Protocol of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the 2006 Convention on the Rights of Persons with Disabilities. The OHCHR also details a non-exhaustive list of “other universal instruments relating to human rights” (although including the core instruments just noted). The list is nonetheless long and diverse and embraces declarations, principles, guidelines, standard rules, and recommendations which, according to the OHCHR, “have no binding legal effect,” as well as covenants, statutes, protocols, and conventions that, it asserts, “are legally-binding.” The wide scope of topical categories includes the right of self-determination, the rights of indigenous peoples and minorities, social welfare, and humanitarian law (i.e., the humanitarian rules of armed conflict).
Thus, across a wide range of issues and themes and in addition to overseeing human rights treaties deemed legally binding in theory, the UN has adopted human rights instruments that are presumptively not legally binding, as is, in contrast, a treaty or a resolution of the Security Council. Such instruments—particularly when they enunciate principles of great and solemn importance—may nevertheless create strong expectations about authority and control. Perhaps the best-known examples subsequent to the Universal Declaration of Human Rights are the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (1970) which affirms, among other things, “the duty of all states to refrain from organizing, instigating, assisting or participating in…terrorist acts.”
Human rights and the Helsinki process
After World War II, international concern for human rights was evident at the global level outside the UN as well as within it, most notably in the proceedings and aftermath of the Conference on Security and Co-operation in Europe (CSCE), convened in Helsinki, Finland, on July 3, 1973, and concluded there (after continuing deliberations in Geneva) on August 1, 1975. Attended by representatives of 35 governments—including the NATO countries, the Warsaw Pact nations, and 13 neutral and nonaligned European states—the conference had as its principal purpose a mutually satisfactory definition of peace and stability between East and West, previously made impossible by the Cold War. In particular, the Soviet Union wished to gain recognition of its western frontiers as established at the end of World War II (which ended without the conclusion of an omnibus peace treaty). The West, with no realistic territorial claims of its own, sought concessions primarily on security requirements and human rights, largely in that order.
The Final Act of the conference, also known as the Helsinki Accords, begins with a Declaration on Principles Guiding Relations between Participating States, in which the participating states solemnly declare “their determination to respect and put into practice,” alongside other “guiding” principles, “respect [for] human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief” and “respect [for] the equal rights of peoples and their right to self-determination.” It was hoped that this declaration, the importance of which is reflected in its having been signed by almost all of the principal governmental leaders of the day, would mark the beginning of a liberalization of authoritarian regimes.
From the earliest discussions, however, it was clear that the Helsinki Final Act was not intended as a legally binding instrument. The expressions “determination to respect” and “put into practice” were seen to represent moral commitments only, the Declaration of Principles was said not to prescribe international law, and nowhere did the participants provide for enforcement machinery. On the other hand, the Declaration of Principles, including its human rights principles, was always viewed as being at least consistent with international law; and, in providing for periodic follow-up conferences, it made possible a unique negotiating process (the “Helsinki process”) to review compliance with its terms, thus creating normative expectations concerning the conduct of the participating states. In these ways, the declaration, ergo the Helsinki Final Act, proved to be an important force in the fall of the Iron Curtain and the transformation of eastern Europe in 1989–90.
The Helsinki process, involving long-running “follow-up,” “summit,” and other meetings, served also to establish a mechanism for the evolution of the CSCE from a forum for discussion to an operational institution, beginning with the adoption of the Charter of Paris for a New Europe in 1990. In 1994 the CSCE was renamed the Organization for Security and Co-operation in Europe, and its principal organs and bureaus eventually included an Office for Democratic Institutions and Human Rights (in Warsaw), a Conflict Prevention Centre (in Vienna), a High Commissioner on National Minorities (in The Hague), and a Court of Conciliation and Arbitration (in Geneva). These offices were increasingly pressed into service to alleviate major deprivations of human rights, particularly those arising from ethnic conflicts. In addition, the Vienna Human Dimension Mechanism and the Moscow Human Dimension Mechanism provide a preliminary formal means of raising and seeking to resolve disputes about violations of human rights commitments, including the possibility of on-site investigation by independent experts. All these mechanisms bespeak, however, an essentially interstate process; neither individuals nor nongovernmental organizations (NGOs) have access to them except indirectly as suppliers of information and conveyors of political pressure. They thus contrast markedly with the individual-complaint procedures that are available within the UN system and in regional human rights systems.
Regional human rights systems and developments
Action for the international promotion and protection of human rights has proceeded at the regional level in Europe, the Americas, Africa, Southeast Asia, and the Middle East. By the first decade of the 21st century, however, only the first four of these regions had created enforcement mechanisms within the framework of a human rights charter.
Human rights in Europe
On November 4, 1950, the Council of Europe agreed to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the substantive provisions of which were based on a draft of what is now the International Covenant on Civil and Political Rights. Together with its 11 additional protocols, this convention, which entered into force on September 3, 1953, represents the most advanced and successful international experiment in the field to date. Over the years, the enforcement mechanisms created by the convention have developed a considerable body of case law on questions regulated by the convention, which the state parties typically have honoured and respected. In some European states the provisions of the convention are deemed to be part of domestic constitutional or statutory law. Where this is not the case, the state parties have taken other measures to make their domestic laws conform with their obligations under the convention.
Notwithstanding these successes, a significant streamlining of the European human rights regime took place on November 1, 1998, when Protocol No. 11 to the convention entered into force. Pursuant to the protocol, two of the enforcement mechanisms created by the convention—the European Commission of Human Rights and the European Court of Human Rights—were merged into a reconstituted court, which now is empowered to hear individual (as opposed to interstate) petitions or complaints without the prior approval of the local government. The decisions of the court are final and binding on the state parties to the convention.
A companion instrument to the European convention—similar to but preceding the International Covenant on Economic, Social and Cultural Rights—is the European Social Charter (1961) and its additional protocol (1988). In contrast to the adjudicatory enforcement procedures of the European convention, the charter’s provisions are implemented through an elaborate system of control based on progress reports to the various committees and organs of the Council of Europe. The revised European Social Charter, which was intended gradually to replace the 1961 charter and entered into force in 1999, modernizes its forebear’s substantive provisions and strengthens its enforcement capabilities. The basic rights set forth in the revised charter concern housing; health; education, labour rights, employment, and parental leave; protection from poverty and social exclusion; free movement of persons and nondiscrimination; migrant worker rights; and nondiscrimination of persons with disabilities.
