How
is a human right created ?
The
examples of rights and protection institutions which were presented in the
preceding chapters, show that not all rights are the same nor have the same
reach. Furthermore, they can evolve.
We
have seen that the Council of Europe adopted numerous conventions (or
charters). As well, the Committee of Ministers adopted a number of
declarations and recommendations concerning human rights, and were followed
in this by the UN and other regional organisations. These normative
instruments do not all have the same legal weight. Some, particularly well
known (conventions) carry a great importance because States are bound to
follow them. Other (declarations), even if they do not have a binding legal
value, have nonetheless contributed to common standards leading to general
obligations.
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5.1.
The elements of a right
To
make the best use of the fundamental rights, it is important to understand
their components. To be complete, a right must contain:
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a titular (the addressee of the right, clearly identified);
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content (what the right protects must be explicitly mentioned);
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a means of implementation (the manner in which the right is to be applied
must be indicated). For example, the means and types of sanctions in case of
violation.
When
a right contains these three elements, it can be considered as
“complete”. Normally, this is the case with rights entered into
conventions and treaties, which create obligations for States. The rights
proclaimed in resolutions or declarations do not include the means of
implementation.
5.1.1. The titular
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The titular of a
right may be individual or collective. The European Convention begins its
articles by “all persons”, which designates individuals as addressees of
the rights. Some rights, such as the right to association, can only be
exercised collectively. At the same time, they maintain an individual
dimension, such as the right to belong to an association or a union. With
few exceptions, the majority of human rights in international law, whether
they be civil and political rights or economic, social and cultural rights,
are recognised solely by their individual nature (for example, the right of
minorities).
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5.1.2. The content
The content of
rights can demand abstention or intervention on the part of a State.
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In the first case, the right is called “attributive” or
“negative”. For example, for the freedom to create an association or a
union, it is asked that the State abstains from any intervention.
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In the second case, it is a “debtor” right, which requires an
action on the part of the State. The right to education is a good example.
The right to a fair trial also requires an action from the State.
Rights should not be
categorised too quickly; they often unite the two categories of
“attributive” and “debtor”. Freedom of expression requires that the
State does not intervene, but does require intervention when it is denied.
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5.1.3.
Means of implementation
Depending on the
type of right, its implementation passes either by the affirmation of a
violation, or by the establishment of a program of application. In a case
such as torture, which is forbidden, it is evident that, according to the
facts, there was or was not violation. This is known as
“self-executing”. This right does not require interpretation to
determine if there was or not violation of it. On the other hand, a right
such as education requires means and cannot always be immediately or
completely implemented by a State. This right sets goals to reach, where
reaching them varies from situation to situation.
Allegations of violations must be interpreted in function of the
reality of the situation to determine whether or not there was a violation.
These are known as “programme” rights.
This last point
shows that, even if a State has the responsibility to respect and ensure
respect of human rights, the actions of groups and individuals play an
important role. Groups of citizens can act as “guardians” against the
excesses of authority and violations, as well as disseminating throughout
society understanding and respect of these standards. All elements of
society: schools, media, business, individuals, etc. participate equally in
the daily acts to ensure the reign of law. The application of rights
indicates their real value.
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5.4.1. Human rights
coherence
In
the diversity of the rights that we have reviewed, the ideas of 1948,
recommending the universality of human rights, were confirmed amongst others
by the United Nations Vienna Conference on Human Rights, held from 14-25
June 1993. This Conference tried to eliminate the diverse schools of thought
and tendencies created around the evolution of human rights. The end
of the Cold War and the disappearance of the two blocs (Communist and
Western) leads us today, from East to West and from North to South, to a
single, global conception of human rights, a sort of synthesis or coherent
whole.
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5.2.
The sources of law
Amongst
the sources of international public law, which includes international human
rights law, one can distinguish the formal sources, which are the methods
used to create international regulations, and the material sources using
political, social, economic or other causes as the basis for creation of
international regulations.
5.2.1. Formal sources
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It
is only the formal sources, principally the conventions, international
treaties and international custom, which interest us here.
Whatever
their legal value, the conventions and declarations concerning human rights
which are adopted by the United Nations General Assembly, at the universal
level, and the regional intergovernmental organisations are always preceded
by projects carried out by sub-groups within the organisation. It then
adopts a recommendation - sometimes called a “declaration” - before
finally adopting a convention on the subject. This is the path taken for the
European Convention on Human Rights, which was based on the Universal
Declaration of Human Rights.
There
are three types of standards regarding human rights which correspond to
three “moments” in the evolution of the legal value and obligatory
nature of human rights texts.
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5.2.2. The three types of
standards
Professor
I. Bokatola, specialist in the rights of minorities, uses the metaphor of
fruit to illustrate these three “moments”.
All fruit passes through three stages:
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first, the seed, where the seed has the potential to created unripe fruit;
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next, the unripe or green fruit which usually cannot be eaten;
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and finally, the ripe fruit which everyone can eat.
Applied
to the subject of human rights, the metaphor gives the following three
stages in the elaboration of human rights texts:
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First stage: “seed law”, which is a draft text or project, the
grain for a law like the “mustard seed” in the Bible which may or may
not produce “unripe fruit” (a declaration), followed by “ripe fruit”
(a convention) depending on where the seed falls, in other words, depending
on the situation.
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Second stage: “unripe law”, which is a law considered to be not
yet “edible” by individuals, in other words, a declaration or
recommendation which needs to slowly ripen before becoming binding for
States and usable by individuals.
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Third stage: “ripe law” or a law which is finally “edible” by
individuals, that is to say, a convention binding for the States which
undertake to adhere to it and ensure its full application for individuals.
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5.3.
The stages of development of a human right
5.3.1. “Seed law”
relating to human rights
1)
Preparation of International Text Drafts
The
is no specific, unique procedure for the creation of international texts
relating to human rights. In United Nation’s Resolution 41/120 of 4
December 1986, entitled “Establishing International Standards in the field
of Human Rights”, the General Assembly asked Member States to keep in mind
the following guidelines when creating these texts:
-
they must be in accordance with existing international law concerning human
rights;
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they must never lose sight of the fundamental character of the rights in
question and, thus, convey the dignity and inherent value of the human
being;
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they must be sufficiently precise so that the laws and obligations which
come from them can be clearly defied and put into practice;
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as appropriate, they must be accompanied by means of implementation both
realistic and efficient, including reporting techniques;
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they must elicit wide international support.
These
recommendations are valid no matter where the human rights text is being
written, whether within regional organisations (Council of Europe,
Organisation for African Unity,...) or specialised institutions (ILO,
UNESCO,...).
Each
organisation has defined it own procedure for writing these texts. In
general, a sub-group (a commission) is given the task, with the support of a
secretariat. The draft is then examined by the principal body of the
organisation and can be adopted after discussions in plenary sessions.
The
preparatory work in writing human rights texts is interesting, though often
neglected. In effect, it is this phase which determines the orientation of
the rights on which future interpretations will rest.
Courts may call upon these working documents when making judgements.
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5.3.2. “Unripe law”
relating to human rights
1) Declarations and Recommendations
The
terms declaration and recommendation have very specific meanings. In certain
uses, a declaration is a formal, solemn instrument, which is used on
exceptional occasions to affirm principles of great importance and lasting
value. Member States are expected to fully respect the declared principles,
as in the case of the Universal Declaration of Human Rights.
On
the other hand, a recommendation is less formal. Apart from this, there is
no difference between a recommendation and a declaration. Each sets out, in
most cases, general principles or standards concerning human rights.
2)
The Reason for Declarations
In
practice, the adoption of declarations or recommendations (second step)
generally precedes that of conventions (third step). There are important
reasons for this order of adoption.
In
effect, experience shows that if numerous States are ready to approve a
proclamation of principles, they are far more hesitant when it is a matter
of binding themselves to an international convention. Therefore, in a
specific field, when it seems that deep divergence may stop States from
ratifying a convention, it is preferable to at least get their recognition
of a certain number of common principles. In view of the difficulties
encountered in preparing international conventions, it seemed wise to
foresee another process in the form of a declaration of principles
There
is another reason for the adoption of declarations before that of
conventions. In the case where a convention is prepared but is not ratified
or only ratified by a minimum number of States, the principles contained in
the convention will have no significance. On the other hand, if there is a
solemn declaration, no matter what else happens, this will remain the basic
reference text on the subject for international organisations and States. In
a way, this is an attempt to create international law by “saturation “
or “intoxication”. When the declaration has been adopted by a large
majority and has the consensus of a large part of the international
community, it can become a means of pressure by States on each other and can
even give birth to international custom on condition that it is widely
applied without ambiguity.
3)
The Legal Value of Declarations
As
for recommendations, declarations concerning human rights have no obligatory
judicial weight: the people for whom they are intended are not bound by them
nor do they commit any offence by not respecting them. The simple act of
calling a text a “declaration” rather than a “recommendation” does
not make it obligatory for anyone. Also, from a strictly legal point of
view, declarations and recommendations well merit the name of “unripe
law” because they need to “ripen” to become binding for States and
able to be solicited by individuals.
Nevertheless,
given the solemnity and broad significance of “declarations”, it can be
considered that in adopting them, States manifest their hope that members of
the international community will respect the principles they proclaim. In
consequence, although “unripe law” non-binding from a legal standpoint,
declarations and recommendations may be very constraining morally and
politically - they are undeniably a means of moral and political pressure.
The hostility of a State to a declaration or recommendation which has
received the support of more or less the majority of States obliges it to
take a defensive position.
These
moral and political considerations are even more pressing when one
understands the means of psychological pressure with which declarations are
invested - the solemnity of the proclamation, formulated in the same manner
as conventions, etc. All this can be even further reinforced when
declarations and recommendations contain control mechanisms to measure
progress in applying the proclaimed principles or to signal oversights or
weaknesses in their implementation. These types of control mechanisms some
exist in human rights declarations, as for example in the United Nations
Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion
or Belief.
Finally,
the absence of binding judicial power does not mean that declarations and
recommendations have no significance. They are part of the creation of new
international common law; as long as they represent the desire of States to
be legally linked and that they are widely practised in a clear and
consistent manner. This is the case, for example, of the Universal
Declaration of Human Rights.
4)
The Universal Declaration of Human Rights
By
defining ”a common ideal to be met by all peoples and by all nations”,
the Universal Declaration of Human Rights does not have, in itself, a
binding legal value. At the same time, some States, by the act of
incorporating it into their constitutions, have accepted to respect it. In
this sense, the binding character of the Universal Declarations comes less
from the text itself than from the unilateral agreement of the State to
accept it. On the other hand, the Universal Declaration has been cited by
other resolutions and international instruments, and since its adoption, has
had wide-ranging moral and political repercussions. All regional conventions
for the protection of human rights refer to the Universal Declaration in
their preambles.
Over
the years, the Universal Declaration has become a reference document, even a
source of international law. It
influences UN politics and, along with it, that of all States; it is one of
the instrument whose provisions have most eminently contributed to the
creation of international custom. As mentioned above, international custom,
along with conventions and international treaties, forms the principal
formal source of international public law, including international law on
human rights.
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5.3.3. “Ripe law”
relating to human rights
As
stated, adoption of conventions or treaties (third step) always takes place
after that of declarations or recommendations (second step).
1)
Conventions, Treaties, Charters, Protocols
A
treaty is an international agreements between two or more States, which in
the field of human rights, contains provisions for the promotion of
protection of one or more human rights. A treaty usually carries the name of
“convention”. On a more general level, some conventions received other
titles (covenant, charter). A text to modify or add to the clauses of a
convention is normally called a protocol. A convention is based on the
general principles and standards contained in the declaration on the same
subject which preceded it. This
third phase in the development of texts sets out precise rights, fixes
limitations or restrictions on exercising these rights and explains the
obligations to be taken on by States.
2)
Procedures to Complete a Convention
Conventions
are texts with a binding legal value for the States for which they are
intended. This is why conventions, contrary to declarations and
recommendations, require signature by States either at the time of their
ratification or at the adherence of States, future members (or parties) to
these conventions. The procedure to complete a convention is comprised of
several successive steps which lead to the final expression of consent by a
State to be bound by it. These steps are: negotiation, signature, approval
and ratification, to which we must add adherence, all leading to the
convention coming into effect. The process remains the same whether the text
is created at universal, specialised or regional level.
1.
Negotiation
The
negotiation of conventions is carried out in the same way as for
declarations, or actually, declarations have been “conventionalised”
since their creation has been copied from that used for conventions.
The
text of a conventions is always composed of a preamble and the terms of
enactment. The preamble states it objectives and goals. The enacting terms
include, first of all, the articles, secondly the final clauses, i.e.,
procedures for amendment, revision, methods of operation and expansion,
duration of the convention, etc., and finally any annexes which are usually
technical or complementary provisions regarding specific articles of the
convention.
2.
Signature
The
end of negotiations is broken into two parts:
1
- the vote or adoption of the convention by consensus of the principal body
of the intergovernmental organisation which has created and negotiated it;
2
- signature of the convention
by State representatives.
The
purpose of the signature is to validate the text, in other words, to confirm
that the final text is what was intended by the States. In principle, a
validated text is not open to modification.
Signing
marks the end of negotiation, but it does not mean that the convention has
become binding for the States which have signed it. General, the binding
legal character of a convention comes from the statement of consent to be
bound by it and not from the signature. With few exceptions, signature shows
a State’s willingness to continue the procedure through to the final
statement of its consent to be bound by the convention.
3.
Approval
Approval
is the first expression of a State to be bound by the Convention. It allows
authorities of the States, such as parliaments for States with
representative governments, to verify that their representatives have stayed
within the boundaries of the instructions they received.
In
general, this verification does not re-open questioning of any promised
already made, as the convention is not yet binding for the State; it is only
a further examination of the text prior to any legal engagement by a State.
Nevertheless, it is not a pure formality, since the parliament may decide
not to approve the convention. The right to refuse to ratify a convention is
inherent in the notion of the formal, classic, ordinary or long convention
finalisation procedure.
Parliamentary
approval usually comes during the interval between the signature and the
ratification of the convention. It is not actually the ratification, since
in representative governments, the parliament authorises ratification and
the head of state formally carries it out. After approval, parliament can no
longer question either ratification or adhesion to the Convention.
4.
Ratification
Ratification
is the second action by which States indicate their consent to be bound by
the convention. It is the act by which the highest State representative with
authority to conclude conventions (the head of state in representative
governments) confirms the conventions drawn up by his representatives during
the negotiations, agrees that it is finalised and binding, and formally
commits in the name of the State to carry it out. With the ratification of
the convention, the State concludes the classic or ordinary finalisation
procedure.
It
is important to note that there is no presumption or obligation for a State
to ratify a convention which it has signed and which has been approved by
its parliament. The competence to ratify belongs to the head of state, that
is, the executive branch, which could very well not follow-up on the
parliamentary authorisation and abstain from the ratification for political
reasons or he could take a very long time to do it. Whatever the reasons,
the State which does not give its definite consent to be bound by the
convention is not obliged to respect it nor can they take advantage of its
provisions. It is only upon submission of the ratification instruments that
the State is legally bound.
5.
Adherence
Adherence
is the act by which a State which has not participated in negotiations and
has not signed the text shows it consents to be legally bound by the
convention. Adherence has the same value as signature and ratification.
6.
Entry into force
In
order to begin applying a convention, the conditions for its entry into
force must be competed. Traditionally, the final clauses of a convention
treat the entry into operation not as the time of unanimous ratification,
but rather when a specific number is achieved. This number can be revised,
downward to facilitate the effective date, or upward if a larger
participation is deemed necessary for reasons of efficacy. This number is
included in the final provisions of a convention.
7.
Reservations
During
ratification proceedings, States may put one or more reservations on
specific provisions of a convention. The practice of reservations means that
the State is not bound by certain provisions to which it is opposed, but it
recognises the rest of the convention. A State always has the right to
retract any of its reservations. It is not possible, however, for a State to
place such a number of reservations that there remains nothing left of the
convention for the State to support.
States
also have the possibility to make declarations of interpretation during
ratification or adherence. In these declarations, the State specifies
details of how it sees its responsibilities, and even more importantly, how
it will apply the convention.
The
limitation of the number of ratifications necessary for the entry into force
of a convention and the possibility to put reservations on it are certainly
an evolution in the convention finalisation procedure, in that they
facilitate and accelerate implementation. However, the increasing use of
reservations ends up by weakening the conventions they are applied to. In
effect, while it is true that using reservations may favour the universality
of conventions by providing an escape hatch for States which might otherwise
not adhere to them, the price to pay is the weakening of the integrity of
conventions.
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