This chapter examines the international legal context of human rights. It first considers the historical evolution of international human rights law, with particular emphasis on the reincarnation of philosophical ideals as international laws (treaties), before discussing the principal sources of international human rights law such as customary international law and ‘soft’ law. It then describes the various forms of expressing human rights, along with the core international human rights instruments. It also explores the mechanisms for monitoring and enforcing human rights, including the United Nations system, regional human rights systems, and national human rights systems. Finally, it explains the process followed for a state wishing to be bound to the provisions of a treaty and the benefits of listing human rights in treaties.
4. Human Rights in International Law
Rhona K. M. Smith
Human Rights in International Law
Rhona K. M. Smith
This chapter focuses on human rights within international law. It discusses the principal monitoring systems that ensured states complied with their international human rights treaty obligations. Some human rights agreements involved the abolition of slavery, humanitarian law, and labour rights. The chapter then lists treaties, customary international law, and soft law as the sources of international human rights law. States generally indicate their acceptance of international human rights law by agreeing to treaties, but they could avoid the full impact of legal obligations through reservations, derogations, and declarations. Thus, the existing mechanisms for monitoring human rights have a light touch that encouraged states to comply with treaties through constructive dialogue instead of any court processes.
8. Human rights in the postwar period
This chapter focuses on human rights, a perfect topic through which to study the interaction between law and politics in international relations. The topic of human rights offers a microcosm of the clashes and contradictions between realism and idealism, legal principles and political expediencies, state and non-state actors, and collective and individual rights, which characterize international order. The chapter defines human rights and outlines their international legal framework. The chapter then traces the postwar evolution of international human rights law (IHRL). It explains how, by the late twentieth century, the concept of human rights had captured the global imagination. It also explores the international political context in which the rise of human rights took place, including decolonization and the explosion in rights-based civil society activism in the 1970s. Finally, the chapter analyses the efficacy of IHRL in a world of sovereign states, before assessing the cultural relativist critique of human rights, which challenges their claim to universality, often from the perspective of postcolonial societies.
7. Contemporary Critiques of Human Rights
This chapter examines contemporary critiques of human rights, focusing on the downside of human rights claims — what is commonly understood by advocates of human rights to be the ‘misuse’ or ‘abuse’ of human rights. It first considers how human rights claims conflate ethical and legal claims because the subject of rights is not a socially constituted legal subject. It then discusses the rise of human rights as well as the relationship between human rights claims and international interventions such as humanitarianism, international law, and military intervention. In particular, it analyses the ethical, legal, and political questions raised by the Kosovo war. The chapter shows that there is a paradox at the heart of the human rights discourse, which enables claims made on behalf of victims, the marginalized, and excluded to become a mechanism for the creation of new frameworks for the exercise of power.
Treaties, Monitoring, and Enforcement
Emily Hencken Ritter
This chapter explores the monitoring and enforcement of treaties, which is the foundation of international human rights law. The international nature of human rights treaties (HRT) makes it difficult to monitor and enforce states' compliance with treaty obligations. The chapter looks at how international organizations, domestic institutions, nongovernmental organizations (NGOs), and civilians monitor state compliance and invoke enforcement when necessary. It then explains the difficulty of constraining a state with the power to harm while demonstrating the power of collective action to change government practices. The process of compliance with international law involves standard setting, state compliance behaviour, monitoring, and enforcement. The chapter also highlights the difference between de jure and de facto rights protections. It looks into the social movements, such as the Black Lives Matter Movement, monitoring and enforcing state accountability to international HRT obligations.
16. Humanitarian Intervention and Political Self-Determination
William Abel, Elizabeth Kahn, Tom Parr, and Andrew Walton
This chapter argues that there is a just cause to intervene militarily in a state that systematically violates the human rights of its members. It rejects the views of those who contend that there is no justification for humanitarian intervention because there are no universal moral values. The chapter accepts that the value of political self-determination can explain what is wrong with humanitarian intervention in some cases. However, appeals to this value are decisive less often than many critics of intervention suppose. One concern with adopting a permissive attitude towards humanitarian intervention is that this might be open to misuse. The chapter then articulates a role for international law in authorizing intervention to minimize this risk. It concludes by clarifying how these arguments fit within a wider set of considerations pertinent to the justifiability of humanitarian intervention.
19. Indigenous Peoples’ Human Rights
This chapter examines issues surrounding the human rights of Indigenous peoples. The conceptual framework for this chapter is informed by three broad, interrelated, and interdependent types of human rights: the right to existence, the right to self-determination, and individual human rights. After describing who Indigenous peoples are according to international law, the chapter considers the centuries of ambivalence about the recognition of Indigenous peoples. It then discusses the United Nations's establishment of a regime for Indigenous group rights and presents a case study of the impact of climate change on Indigenous peoples. It concludes with a reflection on the possibility of accommodating Indigenous peoples' self-determination with state sovereignty.
7. The Court of Justice of the European Union:
a quiet leader
Sabine Saurugger and Fabien Terpan
The Court of Justice of the European Union (CJEU) is one of the key institutions in the European political system, and amongst the less well known. Described as one of the most powerful international courts, and perceived as one of the reasons the UK left the European Union (EU) (their main argument being that they did not want to be held to account by an unelected and non-British court), the Court continues to be shrouded in mystery. The aim of this chapter is to facilitate an understanding of the structure, history, and workings of this Court, as a key actor in the EU’s institutional system. As such, it is not only a judicial actor but a ‘political’ actor too. Its constitutional role, as well as its role during the economic and financial crisis, illustrates these multiple facets.