HOW HAS INTERNATIONAL LAW SOUGHT TO PROTECT HUMAN RIGHTS ON A
UNIVERSAL SCALE ? HAS THE EFFECTIVENESS OF THE INTERNATIONAL LEGAL
REGIME SINCE 1945 BEEN DIMINISHED BY THE APPARENT FOCUS OF PROTECTION
BEING FRAGMENTED TO INDIVIDUAL REGIONAL SYSTEMS ?
Dating from legislation to end the trade in human slavery such as the British Emancipation Act
(1834), and the effects of total war on civilians as contained within the Geneva Conventions
(1949) International law has sought to curb some of the excesses of human behaviour towards its
It is the objective of this paper to consider firstly the attempts of international law to create
universal regimes protecting the rights of humankind with specific emphasis on efforts since the
Second World War, as it could be suggested that these legal efforts are of greater relevance due
to the effects of de-colonisation in generating more sovereigns in the international system, and
greater concerns for human rights. Secondly it is my intention to assess the impact of regional
legislative regimes, and attempt to answer the questions of whether regional efforts are
undermining universal legal regimes or should regional human rights conventions be the mode by
which universal rights are guaranteed.
In the aftermath of the Second World War, the United Nations Organisation (UN) was
established at the San Francisco Conference in 1945. The preamble to the UN charter
"reaffirmed faith in fundamental human rights" Article 1 of the charter determined one of the key
purposes of the UN as being to "achieve international co-operation in solving international
problems of a... humanitarian character, and in promoting and encouraging respect for human
The charter established organs such as the Economic and Social Council (ECOSOC)
which in turn established the UN Commission on Human Rights (CHR), submitting regular reports
on human rights issues to ECOSOC for deliberation. Also contained within the charter is an
agenda which has fallen upon international law to establish accords, covenants and conventions
to facilitate the roles which the UN aspired to whilst working in a highly politicised environment,
which with de-colonisation would become increasingly complex.
The legal efforts pertaining to the protection of individuals can be seen as being
established into two categories - humanitarian and human rights. The former shall receive only a
brief consideration in this paper, as it pertains primarily to efforts to establish protection for
civilians in war, and reciprocal treatment of military Prisoners of War, through codification to
establish customary norms. The principle development in humanitarian law has been the Geneva
Conventions (1949), especially Article 3 which sought to protect individuals participating in
disputes within a state, compromising sovereignty in "armed conflicts not of an international
Attempts to protect human rights on a universal scale have since 1945 it could be
suggested focused around UN efforts, the particular instruments to be considered being, The
Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political
Rights (ICPR), and The International Covenant on Economic Social and Cultural Rights
(ICES).The Universal Declaration had its roots in the Truman speech where the President spoke
of the formation of an International Bill of Rights. The UDHR was presented in December 1948,
its preamble proclaiming that "By teaching and education to promote respect for these rights... by
progressive measures, national and international."
The UDHR set out a list of principles to which individuals were to be entitled. Article 4
prohibited slavery, Article 5 outlawed "torture or to cruel, inhuman or degrading treatment or
punishment", and Article 6 entitled individuals to equal recognition before the law Article 17
entitled all individuals to property rights, the reason for which the communist bloc headed by the
USSR abstained from voting for the UDHR on ideological grounds, reinforcing the notion that
these declarations did not exist in a non-political environment. Since its inception, argument has
persisted over the legal status of the UDHR. At one extreme is the view that the Declaration is of
little utility due to the lack of coercive mechanisms within it, the other suggests that 45 years later,
the principle of Jus Cogens is applicable (Jus Cogens referring to established norms from which
deviation is not permissible), making the UDHR in their view part of the body of customary
international law. One author suggests that in reality the status of the UDHR is somewhere
between these extremes, The declaration being binding not because of the principle of Jus
Cogens but rather because the majority of members have agreed to it. This position is reinforced
by reference to Articles 55 and 56 of the UN charter to which all members "pledge to take joint
and separate action" to promote "universal respect for and observance of human rights" In this
case pledge is interpreted as a legal obligation binding upon the parties.
The ICPR and the ICES were formulated by the UN CHR to create universal human
rights regimes with enforcement mechanisms. The Covenant on Civil and Political Rights
enshrined the right of peoples to self-determination, with the proviso in Article 4 that "In time of
public emergency which threatens the life of the nation... the state parties... may take measures
derogating from their obligations" The ICPR (which was designed simultaneously with the ICES)
is far more detailed in its provisions, and come into force in 1976. For example Articles 9,10 and
14 covering arrest of individuals and conditions during court proceedings, which the parties have
an obligation to "respect and ensure". Most importantly in Article 28, the ICES provides for the
establishment of the Human Rights Committee, composed of human rights specialists from the
states party to the covenant, reporting through ECOSOC as mentioned earlier.
The ICES was smaller in content than the ICPR, and had no interpretation mechanism,
only the ability to report through ECOSOC. The covenant gave economic rights, for example in
Article 1 "In no case may a people be deprived of its own means of subsistence", entitlement to
work (in Article 6), and "fair wages and remuneration" in Article 7 This Covenant also entered
force in 1976 but the reports to CHR were ignored and an ad hoc committee set up by ECOSOC
to review the findings.
The role of International law in establishing universal human rights protection could be
suggested as being one of prescription, codifying practises which the influx of new members
during the 1960's could understand as being a norm of behaviour. It could be suggested that
International Law was seen most realistically in this field as being attained through regional
arrangements which conformed to general principles laid down by the UN. To illustrate this,
Within the UN charter itself under Chapter VIII, Article 52 states "Nothing in this charter precludes
the existence of regional arrangements or agencies for dealing with such matters relating to...
international peace and security" The question which this now raises, is how effective have
regional systems been, and whether or not they have proven a useful substitute for universal
covenants. In order to answer these questions, it is my intention to focus firstly on regimes
undertaken in Europe, and then to compare those with others attempted by regional
organisations, the OAU, and the OAS.
The two major developments in European human rights legislation have been the
European Convention on Human Rights (EHR), and the Helsinki Accord (1975) which was a
product of the CSCE. The EHR was put forward as a regional attempt to implement the spirit of
the UDHR, but with mechanisms to make it viable. As part of this, the European human rights
commission, and European Court of Human Rights were established, their uniqueness being that
an individual can petition the court if they feel their rights to have been violated by a state party.
The first ruling of the European Court was in the Lawless Case (1960), the judgement of which
the British Government accepted five years later - to recognise the right of recourse to the
Commission, and the judgement of the Court. The European Social Charter was a second
instrument intended to complement the EHR which appears to be a regional elaboration of the
ICES, which it could be suggested has since its signing been overtaken by developments in the
integration of the EU.
The Helsinki Final Act (1975) was the product of negotiation between the members of
the Council for Security and Co-operation in Europe (CSCE). This document could be viewed as
a formula for co-operation, without coercion, relative to the détente of the 1970's which took
place. Its provisions for rules governing marriage between persons of different states , cultural
exchanges, and guidelines for education are extensive, though lack mechanisms for
enforcement, as do the provisions in Article VII relating to human rights. However the end of
Article VII suggests that "participating states will act in conformity" with the principles laid down
in the UN charter and UDHR. This statement elevates the UDHR, and can be seen as an attempt
to improve its status as a universal document protecting human rights. The Helsinki Final Act can
also be seen as providing the bulk of its European signatories with further guidelines for the on
going process of integration.
It could be asserted that other regional regimes such as the Banjul charter of the
Organisation of African Unity (OAU), and the American Convention on Human Rights created by
the Organisation of American States (OAS) have not been as successful as those of the
Europeans. The reasons for this could be seen as being not entirely legal. The Banjul charter
(1981) created the African Commission on Human and People's Rights in Article 30, but this is
the only supervisory organ, having no legal court. Article 62 requires parties to submit reports on
progress towards applying the charter, yet there is no detailed means for the Commission to
express an opinion on these reports, allowing possible abuse by parties.
The OAS Convention (1969) on the other hand follows the model closely of the EHR
setting up a judiciary court to supervise cases, and a commission. Individuals can bring cases
against states, but states have to make a declaration in order to bring cases against other state
parties, therefore rendering criticism of state violations, such as during the Pinochet regime in
Chile unaccountable before international law. Having examined some of the regional regimes,
what can be said of their effect on the UN declarations. Firstly it could be suggested that these
regimes have not damaged the credibility of universal regimes. It has already been noted that the
UN charter contained a provision for regional responses to issues such as human rights, as it
could be suggested that no universal regimes can be specific enough to be applied to the myriad
of cultures in the modern world, to use one example, Saudi Arabia abstained from voting for the
UDHR as it felt that the Al'Sharia (Islamic Law) laid down in the Koran was sufficient for
protecting individual rights.
In conclusion it could be suggested that regional regimes, backed up by a customary
body of universal principles such as the UDHR provide the best solution to international
protection of human rights. However it is problematic to have regional systems without political,
economic, and social integration such as Africa, which will have far greater trouble implementing
the Banjul charter than in Europe, which has implemented the EHR and moved further internally,
with Acts such as Maastricht and its Social Chapter. To answer the question of whether these
conventions have undermined the basic declarations, two comments can be made. Firstly the
Helsinki Accord reaffirms its commitment to the UDHR elevating its position to customary law,
and secondly all the conventions have their roots in the work done initially by the United Nations.
If their had been no other response to the UN work, it could be suggested that in the final analysis
the UDHR would have had little impact due to the impossibility of it being applicable to all of the
highly diverse societies in the international system.
(1) See Appendix II - The Geneva Convention in areas relating to the status of civilians in warring
regions Article 51 "Protection of the civilian population".
(2) Charter of the United Nations June 26, 1945 in Newman & Weissbrodt, Selected International
Human Rights Instruments (Anderson 1990).
(3) ibid. p. 2.
(4) See The Geneva Conventions (1949) Article 3 in Wilson H, International Law and the use of
Force by National Liberation Movements (Clarendon 1988) Ch. 3. p. 43.
(5) Op. Cit. (Newman & Weissbrodt) Universal Declaration of Human Rights December 10, 1945
(6) ibid. p. 12.
(7) Sieghart P, The International Law of Human Rights (Oxford UP 1983) p. 53.
(8) Op. Cit. (Newman & Weissbrodt) Charter of the United Nations June 26, 1945 p. 5.
(9) Op. Cit. (Newman & Weissbrodt) International Covenant on Civil and Political Rights
December 16, 1966 p. 26.
(10) Op. Cit. (Newman & Weissbrodt) International Covenant on Economic, Social and Cultural
Rights December 16, 1966 pp. 16-18.
(11) Op. Cit. (Newman & Weissbrodt) Charter of the United Nations June 26, 1945 p. 5.
(12) See Appendix in Buergenthal T, Human Rights, International Law and the Helsinki Accord
(Osmun/Universe Books 1977) p. 167.
Buergenthal T, Human Rights, International Law and the Helsinki Accord (Universe Books 1977).
Newman & Weissbrodt, Selected Human Rights Instruments (Anderson 1990).
Sieghart P, The International Law of Human Rights (Oxford UP 1983).
Starke J G, An Introduction to International Law, Tenth Edition (Butterworths 1989).
The American University Cairo (1994) Sixth Annual Cairo International Model United Nations
Wilson H, International Law and the use of Force by National Liberation Movements (Clarendon