Human Rights

Human rights are entitlements that are inherent to all human beings irrespective of their sex, age, religion, nationality, sexuality, place of residence, language, colour of skin or any other characteristic.

Human rights are universal (applicable to all human beings) and inalienable (they should not be taken away except in specific circumstances aſter due process; for example, liberty may be curtailed if an individual has been found guilty of a crime). The events of the Second World War led to the prioritising of human rights and the Universal Declaration of Human Rights (UDHR) in 1948 – the basis for the European Convention on Human Rights of 1950. The UDHR is widely acknowledged to be the foundation of international human-rights law. It is important to understand the tension between the concept of universal and inalienable rights on the one hand, and the sovereignty of the state on the other.

Origins and development of international law and institutions

Law within states applies to the relationship between the state and the individual or criminal law and the relationship between individuals or civil law. 

Law within states in enforced by institutions such as the courts and the police and it is likely to be codified in some form- i.e. there will be an agreed body of civil and criminal law but International law is essentially the rules governing relationships between states and there is considerable debate about the concept of international law, as law implies some sort of compulsion and higher authority, but in the international system there is no compulsion, because states are sovereign. International law is also  not codified – written out in one place,

There are however  a number of sources, including:

• treaties and conventions between states

• international custom – such as diplomatic immunity

• the general principles of law recognised by civilised nations – things that are illegal in national law are probably illegal in international law

• judicial decisions

• legal writings.

International Criminal Court

Also based in The Hague, the International Criminal Court is a separate court to the ICJ and is not a part of the UN family of organisations. The ICC is responsible for investigating and putting on trial individuals who have been accused of some of the most horrific and heinous crimes in the world – genocide, war crimes and crimes against humanity. In the future, the crime of aggression will also come under the remit of this court. The ICC is a permanent court that replaces the ad hoc tribunals that have oſten been used to bring prosecutions against suspected war criminals and despots, for example aſter the wars in the former Yugoslavia and the genocide of Rwanda. The standing nature of the ICC is meant to ensure that all tyrants who may have considered committing crimes will be deterred from doing so. The ICC was set up by the 1998 Rome Statute and came into force in 2002. The aim of the court is to work in addition to national courts, not to replace them. The ICC only tries a case where a national court system has not been willing or able to bring an individual to justice; the ICC is a court of last resort. 124 states have signed up to the Rome Statute but some countries are not bound by the full requirements of the court, including the USA, China, India and Israel. In October 2016, in a blow to the ICC, South Africa, Burundi and the Gambia announced that they were going to withdraw from the Rome Statute; other African countries may follow. This is because there is a perception among African countries that the ICC is biased against Africans. Most of the ICC’s investigations and trials have been of Africans, and arrest warrants have only ever been issued against Africans. According to some African governments, this makes the ICC look like a colonial organisation. Russia also looks likely to remove its signature from the Rome Statute, perhaps predictably as it may face punishment over the annexation of Crimea and its actions in the Syrian Civil War.

It was more than two years after its inaugural session before the ICC issued its first arrest warrants. Then, it was a further eight years before the court delivered its first judgment, finding Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes for conscripting child soldiers.

 Why isn't the United States involved?

The US argued that its soldiers might be the subject of politically motivated or frivolous prosecutions.

Various safeguards were introduced, and Bill Clinton eventually signed the treaty in one of his last acts as president but Congress never ratified it.

The Bush administration was adamantly opposed to the court and any dilution of US sovereignty in criminal justice, and the US threatened to pull its troops out of the UN force in Bosnia unless they were given immunity from prosecution by the ICC.

In a much-criticised decision, the UN Security Council voted on 12 July 2002 on a compromise that gave US troops a 12-month exemption from prosecution - renewed annually.

But the Security Council - prompted by then UN Secretary-General Kofi Annan - refused to renew the exemption in June 2004, two months after pictures of US troops abusing Iraqi prisoners shocked the world.

The court's operation is seen as weakened without US involvement. However, in particular cases, Washington has not ruled out co-operation with the court. President Joe Biden has ordered US intelligence agencies to share evidence of Russian war crimes in Ukraine with the court.

Special UN tribunals

There have been two notable UN international tribunals that were the forerunners to the International Criminal Court. Following atrocities and war crimes in the former Yugoslavia and the African state of Rwanda, the UN set up criminal tribunals or courts to punish the perpetrators. The International Criminal Tribunal for the former Yugoslavia was set up in 1993 to bring to justice those responsible for genocide, war crimes and crimes against humanity in the Balkans in the 1990s, including the genocide committed at Srebrenica. Likewise, the International Criminal Tribunal for Rwanda was set up as a response to the genocide and mass killings of 1994. The tribunal indicted 93 individuals, of whom 61 were sentenced for crimes.

European Court of Human Rights (ECHR)

The Council of Europe (not to be confused with the Council of the European Union or the European Council) was set up in 1949 in response to the human-rights abuses of the Holocaust. The ECHR aims to promote human rights, democracy and the rule of law in Europe. It currently has 47 member states (the only European country not a member is Belarus). All member states are signatories to the European Convention on Human Rights (draſted in 1950), which is upheld by the European Court of Human Rights (ECHR) based in Strasbourg, France. The Council of Europe is not related to the European Union and nor is the ECHR (not to be confused with the Court of Justice of the European Union (ECJ). The Court, which came into being in 1959, is a court of last resort: individuals or groups who feel that their rights have been breached by a signatory state may appeal to the court to have their case heard if all other legal avenues have been exhausted. While the Court’s rulings are not directly enforceable, all signatory states have agreed under international treaty to uphold the ruling of the Court.

The Right to Vote

Until the twentieth century, the right to vote was regarded as a privilege to be earnt primarily through ownership of land and property, as well as being reserved exclusively for the male half of the population.

The UN Universal Declaration of Human Rights issued in 1948 proclaimed in Article 21 that everyone ‘has the right to take part in the government of his country, directly or through freely chosen representatives’, and also that ‘The will of the people…shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’ This approach has been adopted by other human rights documents, such as the European Convention on Human Rights (ECHR).

In Hirst v UK (2005) the ECtHR ruled that a blanket ban on prisoners voting violated Article 3 in a case that David Cameron described as making him feel physically ill. After years of delay, finally in 2017, then justice secretary David Lidington proposed granting the vote to prisoners on temporary licence, which would affect around 100 prisoners at any one time.

Sources of authority, including the 1948 Universal Declaration of Human Rights

The 1948 Universal Declaration of Human Rights (UDHR) set out for the first time a set of rights that are applicable to all human beings. The UDHR is a remarkable achievement in that it was the first time that statesmen and women from different political, legal and cultural backgrounds agreed on a common set of fundamental rights that apply to all human beings. Although not legally binding, the declaration has been a significant document in developing human rights around the world. It led to a collection of covenants that seek to underpin human rights in the world. The UDHR has also been followed by further covenants, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both adopted in 1966.

Not all states signed up to the UDHR in 1948. Most notably, Saudi Arabia refused to sign on the grounds that the UDHR was incompatible with Islamic law. Saudi Arabia does not allow citizens to renounce their religion which would be considered a breach of their human rights as guaranteed by the UDHR. The Cairo Declaration on Human Rights in Islam, signed in 1990, was an attempt by Islamic countries to give their view on human rights from an Islamic perspective. Freedom of religion is a key tension between the Cairo Declaration and the UDHR.