International human rights law

Eleanor Roosevelt UDHR

The Universal Declaration of Human Rights (UDHR) is a UN General Assembly declaration that does not in form create binding international human rights law. Many legal scholars cite the UDHR as evidence of customary international law.

More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law.

The Organisation of American States and the Council of Europe, like the UN, have adopted treaties (albeit with weaker implementation mechanisms) containing catalogues of economic, social and cultural rights, in addition to the aforementioned conventions dealing mostly with civil and political rights:

• the European Social Charter for Europe of 1961, in force since 1965 (whose complaints mechanism, created in 1995 under an Additional Protocol, has been in force since 1998); and
• the Protocol of San Salvador to the ACHR for the Americas of 1988, in force since 1999.

The African Union (AU) is a supranational union consisting of 55 African countries.[12] Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, in particular by bringing an end to intra-African conflict and creating an effective and productive common market.[13]

The African Charter on Human and Peoples' Rights is the region's principal human rights instrument, which emerged under the aegis of the Organisation of African Unity (OAU) (since replaced by the African Union). The intention to draw up the African Charter on Human and Peoples' Rights was announced in 1979. The Charter was unanimously approved at the OAU's 1981 Assembly.

Pursuant to Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986, in honour of which 21 October was declared African Human Rights Day.[14]

The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union, tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent, as well as with interpreting the African Charter on Human and Peoples' Rights, and considering individual complaints of violations of the Charter. The commission has three broad areas of responsibility:[15]

1. promoting human and peoples' rights;
2. protecting human and peoples' rights; and
3. interpreting the African Charter on Human and Peoples' Rights.

In pursuit of these goals, the commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments."[15][16]

With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the commission will have the additional task of preparing cases for submission to the Court's jurisdiction.[17] In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.

The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union".[18][19] Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as to act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004,[20] but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by fifteen countries.[21]

There are many countries in Africa accused of human rights violations by the international community and NGOs.[22]

The Organization of American States (OAS) is an international organization headquartered in Washington, DC. Its members are the thirty-five independent nation-states of the Americas.

Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:[23]

• strengthening democracy;
• working for peace;
• protecting human rights;
• combating corruption;
• the rights of indigenous peoples; and
• promoting sustainable development.

The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights.[24] The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:[25]

1. the OAS Charter;
2. the American Declaration of the Rights and Duties of Man; and
3. the American Convention on Human Rights.

The Inter-American Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are therefore adjudicatory and advisory:

• Under the former, it hears and rules on the specific cases of human rights violations referred to it.
• Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.[26]

Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela, have been accused of human rights violations.

The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law, and has observer status at the United Nations. The seat of the council is in Strasbourg in France.

The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights.[27] These institutions bind the council's members to a code of human rights which, although strict, is more lenient than that of the UN Charter on human rights.

The council also promotes the European Charter for Regional or Minority Languages and the European Social Charter.[28] Membership is open to all European states which seek European integration, accept the principle of the rule of law, and are able and willing to guarantee democracy, fundamental human rights and freedoms.[29]

The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention on Human Rights. The Council includes all the member states of European Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.[30]

The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe.[31] All 47 member states of the Council of Europe have signed this convention, and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg.[31] In order to prevent torture and inhuman or degrading treatment,[32][33] the Committee for the Prevention of Torture was established.[34]

The Council of Europe also adopted the Convention on Action against Trafficking in Human Beings in May 2005, for protection against human trafficking and sexual exploitation, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse in October 2007, and the Convention on preventing and combating violence against women and domestic violence in May 2011.

The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals rather than states.[31] In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list.[35][36][37] About one out of every twenty cases submitted to the court is considered admissible.[38] In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.[39]

Universal jurisdiction is a controversial principle in international law, whereby states claim criminal jurisdiction over people whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence or any other relationship to the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish.[48] The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.

In 1993, Belgium passed a "law of universal jurisdiction" to give its courts jurisdiction over crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in London following an indictment by Spanish judge Baltasar Garzón under the universal-jurisdiction principle.[49] Adolf Eichmann who was the former Nazi SS lieutenant colonel accused of overseeing the transfer of Jews to Holocaust death camps also persecuted in Israel in 1961. Adolf was living in Argentina after the war.[50] The principle is supported by Amnesty International and other human rights organisations, which believe that certain crimes pose a threat to the international community as a whole, and that the community has a moral duty to act.

Others, like Henry Kissinger,[51] argue that "widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny—that of judges".[52]