I.1.1 Origin and fundamentals of international law
As the main objective of the present work is to assess how the Human Rights Council has contributed to the development of international human rights law through the action of an individual State, it is worth describing relevant aspects of international law, which encompasses international human rights law.
Originally, international law was conceived to be restricted to relations among States and did not recognize individuals as having any rights, or obligations. Even if certain norms and rules were developed among ancient civilizations to regulate their common interaction, international law was recognized as a separate object of study from the latter part of the seventeenth century, in line with the development of the modern European State system after the Peace of Westphalia.
In this context, different theories were elaborated regarding the foundations of international law, including in the fields of the philosophy of law and international relations. From the perspective of the philosophy of law, the starting point is challenging: to define whether international law should really be considered law or a set of moral, political and social norms.
One of the main criticisms made by skeptics about the issue is based on the lack of a hierarchical order at the international level; in other words, the absence of an authority that is superior to States. This situation is said to provide States with an enormous margin of discretion as to whether or not to respect those binding rules which they voluntarily accept.
In response to the skeptics, other scholars have emphasized that international law has a different nature because it is a law of coordination but not of subordination. This is based on the fact that States do not recognize an executive, legislative or judicial branch superior to them, as happens in domestic legal systems, where persons are subject to the jurisdiction of a particular State. According to this view, it is necessary to adopt specific measures at the domestic level for any of these international norms to be considered enforceable.
In fact, the question of the legality of international law based on the lack of hierarchy among subjects of international law could have been argued in the past, when the only existing paradigm was that of the law applied at the national level. However, the current development of international law seems to no longer support this position.
At present, the domestic law of any given State is not self-contained, and it is difficult to understand it separately from international law. There is no choice but to interpret it in a holistic and complex way. The fact that States have no superior authority does not undermine their obligation to respect and comply with international norms as main subjects of international law.
What is more, in an inter-related world, international norms—although not ratified and, therefore, not obligatory for a particular State—could have consequences for this State and its nationals.
Other major critiques of international law include the lack of enforcement and the absence of effective compliance. Regarding the alleged lack of enforcement, it should be said that breaches of international norms have concrete consequences in terms of international responsibility. Good examples are the existence of international tribunals with well-established jurisprudence such as the International Court of Justice, the International Tribunal for the Law of Sea, and the Permanent Court of Arbitration.
Those tribunals are in a position to enforce international law and have contributed to the consolidation of international law. There are also ad hoc tribunals, which have contributed to addressing impunity for serious crimes committed in some States. It is also worth mentioning that there is a growing tendency to resolve disputes on trade and investments through arbitration according to international law within the framework of the World Trade Organization and the International Centre for the Settlement of Disputes.
It could be argued, however, that this improvement has its limitations due to the fact that the competence of these tribunals or mechanisms has to be expressly recognized by States. It, therefore, remains fundamental that States incorporate international law into their domestic legal order or decide to apply it directly through their competent authorities, including national judicial systems.
Nevertheless, there are other enforcement mechanisms provided by international law that can be applied even against the consent of a given State under specific circumstances. In this sense, the United Nations Security Council is able to take immediate and compulsory decisions under Chapter VII of the UN Charter, which even allows the conduct of legitimate military operations in response to any situation that affects international peace and security. Therefore, there are sufficient elements to affirm that international law has a series of enforcement mechanisms that, while disperse and not hierarchical, can be effectively applied to States under specific circumstances.
Regarding critiques on the lack of compliance with international law, it is worth mentioning that even powerful States justify and defend their actions when there is an alleged breach of international law. In sum, today, no single State is able to dismiss international norms without legal, political and even economic consequences.
International law has not only been considered as a political, moral or social concept alone. Since the seventeenth century, when the European State system was consolidated, and even earlier, various scholars have provided a foundation for this new emerging body of law in a more positive tone.
During the Roman era, the term jus gentium—although it was part of Roman internal law—was applied to relations among Roman and foreign citizens and relations among States. In the sixteenth century, Francisco de Vitoria and Francisco Suarez stated that the foundations of the jus gentium came from natural law. Its validity was understood under the premise of faith and an ideal of eternal and universal justice. De Vitoria used the term jus gentium from Roman jurisprudence and applied it to the relations among nations. Vitoria tried to find a law applicable to the expansion of the Spanish Empire in America. Suarez introduced the term inter gentes, which is applied to emphasize the centrality of States in creating international law.
Hugo Grotius is often regarded as the founder of international law. Whilst natural law was considered to have a divine basis, Grotius believed its existence to be based on the need to have rules for the preservation of society and emphasized the importance of customary norms. As a consequence, he fostered its laicization.
As of the seventeenth century, the emphasis was no longer placed on an abstract ideal of justice but rather on positive law, which varies in time and could be different in diverse places. Emerich von Vattel made a key contribution when he based the validity of international law in State consent. The positivist approach has influenced the majority of scholars ever since and has prevailed for centuries. Even today it is the basis of mainstream thinking in modern international law.
State consent is an essential condition for regulating relations among sovereign States. Sovereignty means that States are legally on an equal footing at the international level and not subject to a higher political authority. Legal scholars have paid particular attention to the issue of sovereignty, which is essential for international law because many of its core principles rely heavily on this concept—i.e. non-intervention in domestic affairs, territorial integrity, sovereign immunity Notwithstanding its importance, it is also generally recognized that if it is applied in absolute terms, it could be lethal for compliance with international law because such compliance would depend on the State’s will alone.
To determine the margin of discretion of sovereign States, Dionizio Anzilotti affirmed that the fundamentals of international law reside in the principle that agreements must be complied with, known as pacta sunt servanda. A radical departure from the consensual approach—which placed State consent at the center of international law—was first made by Hans Kelsen, who based international law on a hypothetical norm at the top of a normative pyramid that admits no demonstration. Sociologists such as Nicolas Politi (1872-1942) also defined international law as a social product founded in people’s consciousness.
A different approach to the fundamentals of international law emerged from the perspective of political science and foreign policy scholars. Before World War II, political scientists adopted a formalistic approach that focused on the content of international norms and judicial decisions. Later, the realist theory prevailed and political scientists focused solely on State power, considering international law as an instrument in this regard. This approach, however, did not explain the fundamentals of international law and was gradually replaced by other theories, including those of the legal scholars who focused on case-study research relating to international conflicts. A current approach to international law and international relations—the joint work of legal scholars and political scientists—is based on three theories associated with realism that may provide a response to skeptics: institutionalism, constructivism and liberalism. The content of these theories is vast and continues to evolve.
I.1.2 Notion, sources and subjects of international law
At present, international law is the body of law which not only defines rights and obligations between States but also the rights of individuals, subject to their jurisdiction. International law now encompasses issues of international concern—e.g. the use of force, disarmament, and human rights—and global commons—including the environment, trade and development.
Article 38 of the Statute of the International Court of Justice recognizes three sources of this body of law: international conventions; international customary law; and general principles of international law. This article further considers judicial decisions and the teachings of the most highly qualified publicists of different countries as subsidiary means for the determination of the rules of law.
As a general rule, a State is bound by the obligations that it voluntarily accepts vis-à-vis other States. This is why a relevant part of international law derives from international conventions or treaties, to which States decide to become parties. Treaties are written agreements concluded between two or more States—or between States and International Organizations or between International Organizations—whereby parties establish, or seek to establish, a relationship governed by international law between them.
Nevertheless, there are some other cases where States could be bound even when they did not expressly accept those international norms. This could be the case with certain international customary norms or general principles of international law. International customary norms require two main elements: a generalized practice in this regard and also an opinio juris—i.e. wide legal acceptance of this specific norm. These elements depend, to a great extent, on judicial interpretation.
Menno Kamminga has studied the work of the International Court of Justice (ICJ) in this regard. According to this scholar, in the past, the approach of the ICJ to identifying a rule of customary international law had been to heavily rely on the opinio juris (e.g. North Continental Shelf Cases, 1969). This opinio juris can be found, for instance, in principles, declarations and resolutions widely accepted by States. Later, the ICJ required that the opinio juris be confirmed by State practice. In other words, the tribunal emphasizes that it is important to focus on what States do rather than what they say. However, the ICJ indicates that a contrary practice to this general tendency does not undermine the establishment of a rule except under certain conditions (Military and paramilitary activities in Nicaragua Case, 1986). The approach is subject to debate and the ways to identify these norms will probably continue to evolve over time.
There are two exceptions where there is no discussion about the obligatory nature of international customary norms. One is the obligations owed to the international community as a whole, known as erga omnes, because there is a universal interest in the protection of a specific right. The concept of obligations erga omnes has been expressly recognized by the ICJ. Indeed, Kamminga highlights that this concept is one of the few human rights notions developed by this tribunal. The other type of norms accepted and recognized by the international community of States from which no derogation is permitted are known as jus cogens (or ius cogens). These have been expressly consecrated in international law instruments.
The existence of these norms is undeniable; their content, however, is still subject to interpretation. This has not impeded other courts from considering them. However, Kamminga indicates that the ICJ has been more reluctant to refer to the notion in its judgments.
Today, some scholars study the existence and scope of the sources of international law beyond those formally included in Article 38 of the ICJ Statute. The issue is still under debate and there is no unanimous consensus on the recognition of emerging sources of international law beyond the ones briefly described above.
Regarding legal personality at the international level, States are undoubtedly the main subjects of international law. For a long period of time, they were considered the only ones. Gradually, with the establishment of the League of Nations, and later the United Nations, this concept evolved.
In 1946, the Convention on the privileges and immunities of the United Nations awarded legal personality to this organization. In 1949, the ICJ considered that international organizations have capacity, privileges, immunities, and are able to conclude agreements with their Member States. In this context, this tribunal affirmed that this can only be explained on the basis of the possession of legal personality that differs from the one that is attributed to States. This has been clearly supported and even further developed. In 1989, the Vienna Convention on the Law of Treaties between States and International Organizations and between International Organizations was adopted and showed the importance of international institutions at the international level.
Nevertheless, some analysts, while recognizing the treaty-making capacity of international organizations, are still reluctant to consider their legal personality. They argue that there is no formal concept of international organization and that the work of these institutions depends largely on the will of the States that form part of them.
There is also a debate on the legal international personality of individuals. On the one hand, individuals can submit claims before international human rights bodies or tribunals and at the same time they can, under certain circumstances, have international criminal responsibility. On the other hand, human rights are recognized by States at the domestic level and the international systems of protection only function in a subsidiary and exceptional fashion and with the consent of the State. Also, individual criminal responsibility at the international level is primarily attributed to a person with a specific institutional role in a certain State. In this context, even if it is clear that individuals and groups of individuals have to a certain extent rights to be exercised at the international level, the debate is still open regarding their international legal personality.
I.1.3 International human rights law
The notion of individual rights had its origins in theories by scholars of ancient civilizations, in particular from Greece and Rome. Nevertheless, it was in the seventeenth and eighteenth centuries that this notion of rights started to develop, in particular through philosophers such as Locke, Montesquieu, Rousseau or Paine, who based this concept on theories of natural law.
Indeed, the notion of individual rights and freedoms was codified in legal texts by certain Western countries during the last part of the eighteenth century, notably, the American Declaration of Independence in 1776 and the French Declaration of the Rights of Man and the Citizen in 1789.
For a long period, international law focused on inter-State matters such as territory, State immunity, armed conflicts and the use of force. The rights of inhabitants and citizens of a given State were considered an internal affair of that State and subject exclusively to its domestic law. This did not preclude the fact that, following the principle of reciprocity among States, there was a minimum standard of protection of foreign nationals.
Gradually, the protection of the rights of individuals was considered to a certain extent in international law. In 1864, a group of European States adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. This was the founding instrument of international humanitarian law (IHL), which could be defined as a set of rules that seek to limit the effects of armed conflict. IHL protects persons who are not or are no longer participating in the hostilities and it also restricts the means and methods of warfare. In any case, in its origins, this body of law limited only what a State could do to foreign nationals, not its own nationals or people over whom it exercised colonial rule.
The protection of minorities was also an issue early addressed by the international community. It can be found in the Treaty of Westphalia, in a number of treaties to protect Christian minorities during the Ottoman Empire, after the fall of certain European Empires, and in the Treaty of Versailles and other treaties adopted after World War I. Other major milestones for the protection of all persons were the abolition of slavery in the late nineteenth century and the recognition of workers’ rights in some specific areas.
After World War I, the League of Nations was established. It was an international organization that existed between the two world wars. The League did not regulate specific provisions on human rights, but it developed some specific norms relating to the abolition of the slave trade and freedom of religion, for instance, in colonies of countries that were defeated in World War I. It also established norms for the protection of minorities, in particular in Central and Eastern Europe after World War I. Finally, the League dealt with the protection of workers. In this context, a specific agency was established as soon as 1919: the International Labor Organization, which still exists today.
Nevertheless, it was only after the horror of Nazism that the international community created the United Nations Organization (UN) and decided that there was a need to protect the rights of all individuals beyond the sphere of a given State as well as to develop provisions regarding human rights and freedoms in international law, starting with the United Nations Charter (UN Charter).
The term human rights can be defined as the rights inherent to all human beings, without discrimination, regardless of any status. They have been classified at the international level into two main groups: civil and political rights and economic, social and cultural rights. This was the result of the long-standing division at the international level between Western and Eastern countries during the Cold War era. Western countries pushed for the recognition of public freedoms while Eastern countries emphasized the need to provide social protection to individuals and groups.
In recent decades, there has been a tendency to emphasize their equal importance. The Proclamation of Teheran of 1968 and the Vienna Declaration of 1993 as well numerous United Nations declarations, resolutions and documents ever since have affirmed the universality, interdependence and inter-relatedness of all human rights.
Today, there is general agreement regarding the existence of a specific legal framework called international human rights law as a specific body of international law. International human rights law sets out a series of rights and freedoms for individuals and groups, which have to be fulfilled, respected and protected under the jurisdiction of each State. One of the distinctive characteristics of international human rights law vis-à-vis the rest of the issues regulated by international law is that it provides rights to individuals, not to States, but as part of the international obligations among States.
As a consequence, the State assumes the duty to respect human rights—meaning to abstain from adopting measures which affect the enjoyment of human rights; to protect persons and groups of persons against human rights abuses; and to fulfil human rights—through measures to guarantee their effective realization.
As with any other body of international law, international human rights norms are binding when stemming from treaties, international customary norms or principles of law recognized by civilized nations. At the same time, there are international human rights standards in other instruments such as declarations, sets of principles and guidelines that contribute to the progressive development of this body of law.
International human rights law has been developed internationally and regionally since 1945, mainly through international conventions. From the beginning, it was closely linked to other bodies of international law, such as international humanitarian law or international criminal law. The former because it protects victims of armed conflicts and the latter due to the fact that it establishes individual responsibility on the part of those who commit international crimes, including gross and massive human rights violations as defined by international law such as genocide or crimes against humanity.
According to international human rights law, the State is primarily responsible for the protection of human rights under its jurisdiction. In other words, the State has to take legislative and administrative measures to guarantee the full realization of all human rights within its jurisdiction. In fact, several States have not only ratified many international human rights treaties but have also incorporated human rights in their national constitutions or in specific laws.
In case of human rights violations, individuals have the right to an effective remedy and, therefore, should be able to submit claims before national authorities, in particular, domestic courts. In light of the principle of State sovereignty, any international monitoring system of a judicial or quasi-judicial nature will only be in a position to deal with a case if its competence has been previously recognized by the State concerned and only if all available domestic remedies have been exhausted, the application of the remedies is unreasonably prolonged, or no legal remedies are available. The admissibility criteria for each international mechanism may vary, but these general characteristics are applied in the vast majority of cases.
Therefore, the international community only has a subsidiary role in terms of responsibility for the protection of human rights, in cases where the State is unable or unwilling to comply with this responsibility. Nevertheless, this role has been very significant indeed because it has allowed the gradual development of international systems for the protection of human rights through the establishment of an institutional framework at the universal and regional levels.
- Clapham, Andrew, Brierly’s law of nations. An introduction to the role of International law in International Relations, Oxford University Press, Seventh Edition, 2012, pages 23 to 44. See also Freeman, Mark et al., Essentials of Canadian Law. International Human Rights Law, Irwin Law Inc, Canada, 2004, pages 3-5. ↵
- Pinto, Mónica, El derecho internacional. Vigencia y desafíos en un escenario globalizado, Fondo de Cultura Económica SA, 2004, pages 47-59.↵
- Besson, Samantha and Tassioulas, John, Philosophy of International Law, Oxford University Press, 2010, pages 6-9, available at: https://bit.ly/3kqmUxI.↵
- In this school of thought, we can mention John Austin (1790-1859), who considered international law in the nineteenth century as a system of commands and not of law. See in this regard Orakhelashvili, Alexander, Akehurst’s Modern Introduction to International Law, Eighth Edition, Routhledge, Taylor and Francis Group, 2019, pages 4-5.↵
- Sudre, Frédéric, Droit européen et international des droits de l’homme, Presses Universitaires de France, 13rd Edition, 2016, page 23. See also, Weckel, Philippe, “Les droits fondamentaux et le droit international public”, in Flauss J.F. et al. -Comp-, Le droit des organisations internationales. Recueil d’Études à la mémoire de Jacques Schwob, Establissements Bruylant, 1997, pages 133-134.↵
- Besson, Samantha and Tassioulas, John, Philosophy…, Ibid, pages 8-9.↵
- Clapham, Andrew, Brierly’s law of nations…, Ibid, pages 44 to 54.↵
- See Pinto, Mónica, El derecho internacional…, Ibid, page 59.↵
- Besson, Samantha and Tassioulas, John, Philosophy…, pages 11-12.↵
- United Nations, “Uphold International Law”, “Courts and Tribunals”, available at: https://bit.ly/35jz5YL. ↵
- World Trade Organization, “Understanding on Rules and Procedures Governing the Settlement of Disputes”, available at: https://bit.ly/2JV6ssJ, and Convention on the Settlement of Investments Disputes between States and nationals of other States, 1966, available at: https://bit.ly/3eNEbzC.↵
- Charter of the United Nations, Articles 23-32.↵
- Besson, Samantha and Tassioulas, John, Philosophy…, Ibid, pages 13-15.↵
- Orakhelashvili, Alexander, Akehurst’s Modern Introduction…, Ibid, page 2.↵
- Gross, Leo, “The Peace of Westphalia”, in Gross Leo (Ed), International law in the twentieth century, Appleton Century Crofts, pages 31-46. See also Pinto, Mónica, El derecho internacional…, Ibid, pages 47-50.↵
- Orakhelashvili, Alexander, Akehurst’s Modern Introduction…, Ibid, pages 2-15.↵
- Barreiros, Lucas, “El derecho internacional contemporáneo y el problema de la soberanía. Un intento de reconciliación”, in Pinto, Mónica, Las fuentes del derecho internacional en la era de la globalización, Editorial Eudeba, 2009, pages 80-89. See also Donnelly, Jack, International human rights…, Ibid, pages 3-4. ↵
- Diez de Velasco Vallejo, Manuel, Instituciones de derecho internacional público, Tecnos, Sixteenth Edition, pages 276-278. See also Gross, Leo, The Peace of Westphalia…, Ibid, page 44.↵
- Gross, Leo, “The Peace of Westphalia”, Ibid, pages 44-45. See also Pinto, Mónica, El derecho internacional…, Ibid, pages 50-51.↵
- Pinto, Mónica, “El derecho internacional…”, Ibid, pages 52-53.↵
- See in this regard Whytock, Christopher A., “From International Law and International Relations to Law and World Politics”, University of California, Irvine School of Law and Department of Political Science [2/12/2016 Draft] Forthcoming in William Thompson & Keith E. Whittington eds., Oxford Research Encyclopaedia of Politics: The politics of law and the judiciary, 2016, pages 4-5, available at: https://bit.ly/36rFocb. ↵
- United Nations, “Uphold International Law”, “What is International Law?”, available at: https://bit.ly/35jz5YL. ↵
- Kennedy, David, “The Sources of International Law”, American University, International Law Review 2, no. 1, 1987, pages 1-96, available at: https://bit.ly/3ng3gWY. ↵
- Vienna Convention on the Law of Treaties, 1969, Article 2.↵
- North Sea Continental Shelf Cases, International Court of Justice, Judgement of 20 February 1969, paragraph 77.↵
- Case concerning military and paramilitary activities in Nicaragua, International Court of Justice, Judgment of 27 June 1986, paragraphs 184-186.↵
- Kamminga, Menno, “Humanisation of International Law” in Changing Perceptions of Sovereignty and Human Rights, Essays in honour of Cees Flinterman, Intersentia, Antwerp-Oxford-Portland, 2008, pages 33-35.↵
- Case concerning the Barcelona Traction, Light and Power Company Limited, International Court of Justice, Judgement of 5 February 1970, paragraph 33.↵
- Kamminga, Menno, “Humanisation of International Law”, Ibid, page 32.↵
- See also in this regard, Clapham, Andrew, Brierly’s law of nations…, Ibid, page 502. ↵
- Vienna Convention on the Law of Treaties, 1969, Article 53; Vienna Convention on the Law between States and International Organizations and between International Organizations, 1986, Article 64.↵
- Verdross, Alfred, “Ius Dispositivum and Ius Cogens in International Law”, 60: 55-63 (1966), in Gross Leo (Ed), International law in the twentieth century, Ibid, pages 217-225. ↵
- Kamminga, Menno, “Humanisation of International Law”, Ibid, pages 32-33.↵
- See for instance, Cançado Trindade, Antonio Augusto, International Law for Humankind, The Hague Academy of International Law. Martinus Nijhoff Publishers, 2010, pages 128-132.↵
- International Court of Justice, “Reparations for injuries in the Service of the United Nations”, Advisory Opinion of 11 April 1949, page 174.↵
- See in this regard, Racic, Obrad, “The treaty making capacity of International Organizations: Practice vs Codification Efforts”, in Wolfrum Rudiger et al, Contemporary developments in International Law, Brill Nijhoff, Leiden Boston, 2015, pages 116-137.↵
- See for instance, Janis, M. W., “Individuals as Subjects of International Law”, Cornell International Law Journal: Vol. 17: Iss. 1, Article 2, 1984, available at: https://bit.ly/35j3EOu. See also Pinto, Mónica, El derecho internacional…, Ibid, pages 15-16.↵
- Freeman, Mark et al., Essentials of Canadian Law. International Human Rights Law, Ibid, page 5. ↵
- Pinto, Mónica, El derecho internacional…, Ibid, pages 91-92. ↵
- Freeman, Mark et al., Essentials of Canadian Law. International Human Rights Law, Ibid, pages 9-10.↵
- International Committee of the Red Cross, “Advisory Services on International Humanitarian Law”, 2004, pages 1-2, available at: https://bit.ly/3nd1BS6.↵
- Donnelly, Jack, International Human Rights…, Ibid, page 4.↵
- Freeman, Mark et al., Essentials of Canadian Law. International Human Rights Law, Ibid, pages 10-15.↵
- Sudre, Frédéric, Droit européen et international…, Ibid, pages 26 to 28; Pinto, Mónica, Temas…, Ibid, pages 5 to 9; Pinto, Mónica, El derecho internacional…, Ibid, pages 80-91; Diez de Velazco, M., Instituciones de derecho internacional público, Ibid, page 649; Freeman, Mark et al., Essentials of Canadian Law. International Human Rights Law, Ibid, pages 15-18.↵
- Information on the ILO is available at: https://bit.ly/3kniAzo.↵
- United Nations, “Shaping our future together”, “Human Rights”, “What are human rights?”, available at: https://bit.ly/2Imw693.↵
- Sudre, Frédéric, Droit européen et international…, Ibid, pages 28-34.↵
- Office of the United Nations High Commissioner for Human Rights, “International Human Rights Law”, available at: https://bit.ly/3lnpuG9. ↵