Awareness
On this day in 1948, the United Nations adopted the Universal Declaration of Human Rights, the first ever document setting out a list of fundamental human rights to be universally protected.
The UDHR was a milestone in international human rights law, as it marked an historic time in human history when countries from every region of the globe came together for a unified purpose. In 1950, the UN General Assembly designated December 10 as Human Rights Day to commemorate the legacy of the UDHR and to promote human rights for all peoples and nations. As 2023 marks the 75th anniversary of the UDHR, this year’s Human Rights Day theme is “Freedom, Equality and Justice for All.”
Since the UDHR was so influential to our current international human rights system, we’ve chosen to celebrate this Human Rights Day by writing a brief coverage of international human rights law, and how it’s worked – and not worked – for us as a global community.
What is international human rights law?
International law is the set of rules that govern relations among States. International human rights law (IHRL) is a specific branch of international law that uses international treaties and customary law to confer obligations onto States to respect, protect, and fulfil its people’s human rights. States are required to show their cooperation by ratifying those treaties and incorporating IHRL into their national legislation.
The UN is the official mechanism that monitors relations between States and promotes respect for human rights through international cooperation. It was created in 1945 after the dissolution of the League of Nations, and in direct response to States’ proposals for a global human rights monitoring body following the horrors of WWII. The UDHR – together with the International Covenant on Civil and Political Rights and its two Optional Protocols, as well as the International Covenant on Economic, Social and Cultural Rights – forms the International Bill of Rights that the UN rely on to strengthen IHRL. Currently there are 192 member States to the UN that each get a vote in its parliament.
Does the human rights framework work?
The establishment of the UN – and the drafting of the UDHR – represented a huge shift in the international law system. Before 1945, nobody had the right to look within a state’s borders and judge its actions. But within the human rights framework of today, the global community agrees that we can, and should, regulate what happens within nations.
Moreover, the human rights framework has helped us establish conventions, governing bodies, and mechanisms to hold states accountable for their human rights failures. For instance, in 1945 the UN established the International Court of Justice (A.K.A., the World Court) to settle legal disputes submitted by States and UN, often involving concerns related to human rights.
The human rights framework has also been monumental for transitional justice, particularly by creating mechanisms (e.g., international tribunals) that allow victims of mass human rights violations to punish states’ actions via prosecution and reparation. These mechanisms have also inspired many states to include the language of IHRL into their own institutions which, before 1945, was almost unheard of.
Ultimately, the human rights framework is evidence of a major shift in how the international community thinks about the world. We no longer see states as separate entities living inside a vacuum. Rather, we see them as part of an international community, where rights are afforded to all people, across borders, by simple virtue of being human.
Of course, the human rights framework is not without its problems. One of the biggest problems of IHRL is that it’s oftentimes unenforceable. When a state commits a human rights violation, we can’t put them in handcuffs. We can’t put them in jail, and we also (generally) can’t strongarm them into compliance with the law like we would an individual. The UDHR itself, although part of customary law, is not even binding in itself.
Instead, international law runs on a system of state consent and reciprocal obligation, where we say that states must ratify treaties and fulfill human rights – but, really, they only “need” to do so if they want to. Take the United States, for example: Despite signing and ratifying the Convention Against Torture decades ago, there are countless instances where the US has been found to use torture against civilians. Often, the US will even just opt out of ratifying treaties or submitting its compulsory human rights reviews to the UN.
This leads into another problem with the human rights framework: It has frequently been called out for being highly political. That is, states that have a lot of political power, like the US, tend to “get away” with a lot more than less powerful states. Some critics – like those who support TWAIL – even go so far as to say that the international law framework is illegitimate, as it is less a system to regulate behaviour between equal states, and more a colonial tool used by the politically powerful to punish and control the non-powerful.
When states are not outright violating human rights law, they are finding legal loopholes. Consider the issue of refugees: Article 41 of the UDHR guarantees a fundamental human right to seek asylum. According to IHRL, one of the most important obligations on states regarding asylum is the principle of non-return (non-refoulement) – a state cannot, under any circumstances, return someone to a place where their life or freedom is threatened. And yet, states find loopholes that allow them to violate this principle regularly. For instance, the right to asylum attaches to an individual as soon as they leave their home country; but the receiving state’s obligations to provide asylum do not attach until the asylum-seeker has entered that state’s territory. What we tend to see is that states who do not want refugees (e.g., Australia) will prevent asylum-seekers from reaching their territory altogether. The wording of some of the conventions offers wiggle room.
The Role of NGOs
The problems inherent to IHRL leave large gaps in human rights monitoring and enforcement; fortunately, non-governmental organisations fill these gaps.
NGOs played a key role in determining what human rights look like today. Due to their independent nature, they are not bound to the same political pressures as the UN, and are therefore greatly reliable in highlighting state failures to abide by their human rights obligations. In a similar vein, they do not have the same need to “save face” by treading lightly on human rights matters; in fact, a large part of NGOs’ effectiveness is their ability to enforce states’ human rights compliance by “naming and shaming” their failures. Beyond this, NGOs regularly lobby with other states to exert multilateral pressure on the offending state.
Importantly, NGOs methods rely on their ability to credibly demonstrate that abuses are occurring in a given state – so a big part of their mandate is to produce human rights reports. These reports require experts, journalists, on-the-ground volunteers, and many other resources to bring them to fruition. This is why donating to these organisations is so important; they protect your rights by holding your state internationally accountable.
The human rights framework we have today is as young as it is complicated. Yet, despite its setbacks, we have seen more advancement in human rights in less than a century than was ever seen across the millennia prior. The Universal Declaration of Human Rights is proof that we are able to envision a better world; and our efforts to achieve that vision grow more fruitful every December 10th.
Written by: Serena Celeste Romanelli
