CHAPTER 2

Connections Between Human Rights and Law

2.1 What Are Human Rights?

Ask yourself this question: “What must every human being have, in order to live with dignity and without fear?” If you made a list of what you think are basic human needs, your neighbours—and perhaps the majority of other individuals in the world—would probably agree with most items on that list. A cluster of fundamental human needs might include “love and friendship”, which no government can guarantee. But your list might also mention adequate food, water and health for yourself and your family, freedom from slavery, fair treatment under the law, and a home that is more than just a shelter.

Such basic human needs and values are at the foundation of universal ideas about human rights. Decent food, housing and many other things (including political freedoms) are necessary for a good life. They are so essential that everyone’s rights to adequate food, housing, health, etc., are among the rights proclaimed in the Universal Declaration of Human Rights. Human rights agreed to in numerous international treaties, as well as in the constitutions and laws of countries worldwide, can be traced to the Universal Declaration.

No country or government is allowed to deny universal human rights. The UN itself must also respect, protect and try to fulfil or ensure these rights in its own activities. These human rights belong to each individual. A number of rights involving natural resources, land and cultural heritage are also often seen as rights belonging to groups of people.

2.2 What Is Law? And How Does It Relate to Human Rights?

Imagine a village called Fairplace. Everyone in the village shares one source of water: a small well. Since every child and adult must drink clean water to stay alive, the villagers would need to agree on how to share the available water. Fairplacers could make and follow rules about how much water each person or family is allowed to take daily or weekly. The rules should also ensure that soap, oil or other harmful substances do not get into the well. And fair rules would normally let visitors obtain some of the water when they are in the village.

If rules permitting everyone to use only a fair share of water are adopted or legislated by a government, or if the rules are established by decisions of judges, then the “rules” are also “laws”. A law is a formal, official rule that is backed by the authority of one or more governments.

Now picture Thugplace, where the law says this: “No one is allowed to obtain water from local wells until the men with the most powerful weapons have taken as much as they want”. Undemocratic rulers sometimes act as if there are laws that do say that. Should everyone obey such a law? If you don’t like the law, it might be dangerous to challenge it. Where civil and political freedoms are respected, it is easier to struggle for other kinds of human rights; the denial of civil and political rights makes it harder to pay attention to a lack of economic, social or other rights. (If you are always hungry or your children are constantly ill, you may not think you have enough time or power to demand better working conditions or to make good use of your political freedoms.)

Most people would oppose a law that denies access to drinking water on an unfair, arbitrary or discriminatory basis. The idea of such a law is offensive. Similarly, a law denying adequate food to one group of people should shock the conscience of a human being. It is not surprising, therefore, that the human rights to adequate living conditions, including food, water, clothing and decent housing, are universal. Many scholars and activists argue that universal human rights should be given priority over the laws of a country that conflict with them. In many countries, a popular way for professors to explain the supremacy of universal human rights over other laws and interests is to refer to the use of “trump cards” or suits in card games—cards that can beat any other card. In most circumstances, human rights “trump” other moral, political and even legal considerations.

Ideally, the constitution and other laws of a country will include protections for human rights, and will require that all laws and practices of governments and their agencies must comply with human rights laws. To make these guarantees real, however, ordinary people must have fair and adequate access to the nation’s justice system, without facing unfair hurdles.

2.3 Are International Human Rights Covered by Law?

Universal human rights are not just polite ideas about treating everyone fairly. They are part of international law, which is based on agreements among countries and on legal principles that are shared by many countries.

According to international law, no country’s laws or practices are allowed to violate universal human rights. National laws are supposed to promote and respect human rights, and to ensure that everyone has the opportunity to benefit from them. If there is a conflict between a country’s laws and universal human rights, in theory it is the country’s laws that should change. In the real world, however, such changes rarely happen unless people bring the law to life by insisting that their own rights be respected, or by trying to protect the rights of other people. This Handbook will be one new tool for those who work toward such goals.

Although international human rights law is found mostly in written agreements among countries, much of it began as unwritten, or “customary” law. Just as modern laws of countries often began as customs, religious values or traditional rules, so did much of international law. The history of customary law, including the banning of slavery and the slave trade, helps to illuminate the power that groups of ordinary people can generate to persuade governments to develop and enforce human rights laws. At one time, slavery was lawful and very common. Combined action by committed citizens, religious organisations and sympathetic politicians eventually made slavery a violation of law in one country after another, until it finally became a violation of customary international law, which is binding on all nations. Only later was the prohibition of slavery written into international human rights treaties. (NGOs, religious groups and others continue to try to eradicate practices that resemble slavery in many countries, such as exploitation of captive labour.)

Worldwide mobilisation of people to assert human rights is not a thing of the past. During the 1990s, a campaign primarily begun by NGOs, joined over time by supportive political figures, led to a new world treaty banning anti-personnel land mines. Continued political and media pressure from individuals and NGOs can also influence governments to ensure that longstanding human rights stated in the Universal Declaration, in international treaties and in national law are publicised, claimed and enforced.

2.4 Is International Human Rights Law Enforceable?

Human rights treaties require countries that have ratified them to submit their human rights performance (good or bad) to international supervision. The reporting systems for monitoring whether States have met their human rights obligations are described more fully in Chapters 10 and 11. In general, though, at the international level, States report on their own performance to bodies set up by the United Nations to monitor each of the six major human rights treaties described in Chapter 1: the International Covenant on Economic, Social and Cultural Rights (ICESCR or the Covenant); the International Covenant on Civil and Political Rights (ICCPR); the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC); and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention). Self-reporting has obvious drawbacks, but countries are reluctant to give up part of their “sovereignty” (power to run their own affairs) and to allow their actions to be judged by outsiders. Not surprisingly, the methods set up for supervising obedience to international human rights law are not as strong or straightforward as the systems for supervising law within countries. The desire by countries to maintain control over their internal affairs makes it hard to monitor and ensure implementation of human rights. There are also other factors that hamper supervision and enforcement:

1. Enforcement of international law requires the voluntary co-operation of governments, yet they are the main violators of international human rights. They don’t like their human rights violations to be exposed or condemned. For that reason, NGO efforts to expose human rights violations are essential, and may sometimes be risky.

2. The UN’s methods to combat violations of human rights usually consist of publicity, political pressure and advice, rather than court cases or other actions that are often used to enforce laws within a country. Punishments for international human rights violations occur rarely, and are not harsh. Besides any public embarrassment suffered by a country or its diplomats, penalties may involve restrictions on trade, investment or diplomatic privileges, which may not cause much harm to a nation’s elite, or to the country generally.

3. The UN uses only a small portion of its resources to encourage protection and fulfilment of human rights. (Remember that governments provide the money for running the UN, and they determine its budget.)

4. There are no UN human rights police, and a world court does not exist (yet) to investigate and prosecute extreme human rights offenders. (For two places where massive human rights violations occurred in the 1990s, Bosnia-Herzegovina and Rwanda, the UN set up special courts, and has considered similar arrangements for Cambodia and other places. An International Criminal Court to deal with certain kinds of serious violations occurring anywhere in the world may be established early in the 21st century.)

Despite the problems that hinder monitoring and protection of international human rights, community-based groups and other NGOs often succeed in their efforts to advance human rights. How do they overcome the weaknesses in the human rights supervision systems set up by the UN and other international bodies?

1. Most international human rights law is not enforced through international organisations. It is enforced within countries. Many national laws (including provincial or state laws) are based partly on international human rights law, so when national law is enforced, it may enforce the international human rights law as well. Enforcement inside a country also occurs if a judge bases a case decision directly on international law, in those countries where the legal system permits or encourages judges to do so.

To encourage national respect for international human rights law, NGOs should ensure that national governments and courts learn more about it and about their country’s obligations under that law. For example, which international treaties has the country agreed to comply with? The country’s Foreign Affairs Ministry should have a list of such treaties, and the UN human rights website also lists the countries that have agreed to comply with each human rights treaty (see Annex D for information on how to navigate the UN human rights website).

2. Most governments respond to public opinion; if enough people and organisations demand improvements in respect for human rights, governments may take practical steps to meet their human rights obligations. Pressure on governments can come through democratic political processes, through the media, through court decisions, through action by citizens’ groups or trade unions, or through criticism by the UN or other organisations. NGOs can use their knowledge and influence to contribute to all of these avenues for seeking change.

3. In addition to the UN, guarantees for human rights are found in agreements among member countries of a few regional organisations in the world, such as the Organization of American States, the Organisation for African Unity, the Organisation for Security and Co-operation in Europe, and the Council of Europe. A remedy for violations may be found through one of these intergovernmental organisations. In general, regional enforcement procedures are no stronger than those of the UN; however, those of the Council of Europe are much more robust than the UN’s.

4. Even though the UN’s system for promoting human rights is weak, it does achieve some success. If the right UN officials and bodies are given timely and accurate information by government representatives or NGOs, the UN can often influence the way a country treats its citizens. High officials from the UN or from other international bodies sometimes save lives by contacting national political leaders and asking them to prevent or stop human rights violations (such as political or ethnic killings). Longer term improvements in the enjoyment of human rights in a country can be achieved with the help of UN-sponsored education, training and technical advice programmes. These types of assistance are not usually arranged until human rights violations have been exposed by NGOs, however.

2.5 Enforcing the International Covenant on Economic, Social and Cultural Rights through the United Nations—An Introduction

By signing the Covenant, representatives of countries or “States” show their intention to comply with it. At least 140 States (the great majority of the world’s countries) have gone a step further, reinforcing their signatures by officially “ratifying” the Covenant. As a treaty, the Covenant is a contract among States. Each State that ratifies the Covenant becomes a “State Party” to it, and the State concerned has a legal obligation to abide by it.

According to Article 16(1) of the Covenant, each State Party is required to submit periodic reports to the UN, describing the measures it has adopted and the progress made in achieving the observance of the rights recognised in the Covenant. The Committee on Economic, Social and Cultural Rights (CESCR or the Committee) acts as the supervisory body for the Covenant. The CESCR consists of independent experts appointed by the UN. The Committee considers a State’s submitted report, poses questions to the State’s representatives, and engages in constructive dialogue with the State’s delegation about the situation in their country. The CESCR members then prepare Concluding Observations, containing their opinion on the State Party concerned. This document identifies positive aspects, factors impeding implementation of the Covenant, principal subjects of concern, and recommendations on how the State can foster improvements.

The CESCR also publishes General Comments explaining many facets of the Covenant and how it can be implemented better, so that States can be more successful in their efforts to comply with and report on their treaty obligations.

Similar procedures are followed in the compliance frameworks for the other main UN human rights treaties, dealing with civil and political rights, the rights of children, the rights of women, the prohibition of racial discrimination, and the prohibition of torture.

There are many courses that NGOs follow to try to reduce violations of economic, social and cultural rights through the UN and within their own countries. Several options are discussed in more detail in Chapters 9, 10 and 11.