International Human Rights

Professor Saira Mohamed

Summer 2016

First Assignment

Welcome to International Human Rights! Our first class is Wednesday, Aug. 3 at 9am in room 145.

For the first day, please read the following (readings are from the Henkin et al. Human Rights casebook
(2d ed. 2009) unless otherwise noted):

(a) The Idea of Human Rights

Antecedents and Theories: 42–46; 135–41 (stop at end of Henkin excerpt)
Universality and Cultural Relativism: 153–59; 168–74 (start at Cultural Relativism heading,
skip notes at end of Kausikan excerpt); skim Universal Declaration of Human Rights
(bCourses)

(b) Introduction to the International Law of Human Rights

Treaties: 198 (bottom)–202 (skip notes); skim Genocide Convention (bCourses) and
Selected Reservations (bCourses); 205–08 and note 1; 210; 211 (start at Responsibility
heading)–20
Custom: 239 (bottom)–44
Non-binding Norms: 245 (bottom)–46

NOTE: Students with no background in international law should also read 190–98

For those of you who have not yet purchased the Henkin casebook, copies of the pages assigned for the
first class are attached here.

I look forward to seeing you on August 3!

 CHAPTER 2

THE HUMAN RIGHTS IDEA

Louis Henkin, The Age of Rights
1–5 (1990).

The contemporary idea of human rights was formulated and given

content during the Second World War and its aftermath. During the War,
the Allied powers had proclaimed that assuring respect for human rights
was their war aim. In 1945, at Nuremberg, the Allies included crimes
against humanity among the charges on which Nazi leaders were tried. The
United Nations Charter declared that promoting respect for human rights
was a principal purpose of the United Nations Organization. The human
rights idea found its contemporary expression in the Universal Declaration
of Human Rights adopted by the United Nations General Assembly in
1948, and in the numerous covenants and conventions derived from it.
‘‘Rights’’ have figured prominently in moral, legal, and political theory.
The idea of rights is related to theories of ‘‘the good,’’ of ‘‘the right,’’ of
‘‘justice,’’ and to conceptions of the ‘‘the good society.’’ In contemporary
philosophical literature the idea of rights is often considered an alternative
to various brands of utilitarianism.
Individual rights as a political idea draws on natural law and its
offspring, natural rights. In its modern manifestation that idea is traced to
John Locke, to famous articulations in the American Declaration of Inde-
pendence and in the French Declaration of the Rights of Man and of the
Citizen, and to realizations of the idea in the United States Constitution
and its Bill of Rights and in the constitutions and laws of modern states.
The idea of human rights that has received currency and universal (if
nominal) acceptance in our day owes much to these antecedents but it is
discrete and different from them. The contemporary version does not
ground or justify itself in natural law, in social contract, or in any other
political theory. In international instruments, representatives of states
declare and recognize human rights, define their content, and ordain their
consequences within political societies and in the system of nation-states.
The justification of human rights is rhetorical, not philosophical. Human
rights are self-evident, implied in other ideas that are commonly intuited
and accepted. Human rights are derived from accepted principles, or are
required by accepted ends—societal ends such as peace and justice; individ-
ual ends such as human dignity, happiness, fulfillment.
What the pattern of declared norms amounts to, the idea it reflects, is
nowhere articulated. I attempt to do so here, not as a philosophical
construct, but as a distillation of what underlies national and international
instruments.
42
 CHAPTER 2 THE HUMAN RIGHTS IDEA 43

Human rights are rights of individuals in society. Every human being

has, or is entitled to have, ‘‘rights’’—legitimate, valid, justified claims—
upon his or her society; claims to various ‘‘goods’’ and benefits. Human
rights are not some abstract, inchoate ‘‘good’’;* they are defined, particular
claims listed in international instruments such as the Universal Declara-
tion of Human Rights and the major covenants and conventions. They are
those benefits deemed essential for individual well-being, dignity, and
fulfillment, and that reflect a common sense of justice, fairness, and
decency. In the constitutional jurisprudence of the United States, as we
shall see, individual rights have long been thought of as consisting only of
‘‘immunities,’’ as limitations on what government might do to the individu-
al. Human rights, on the other hand, include not only these negative
‘‘immunity claims’’ but also positive ‘‘resource claims,’’ claims to what
society is deemed required to do for the individual. They include liberties—
freedom from (for example, detention, torture), and freedom to (speak,
assemble); they include also the right to food, housing, and other basic
human needs.
Human rights are universal: they belong to every human being in
every human society. They do not differ with geography or history, culture
or ideology, political or economic system, or stage of societal development.
To call them ‘‘human’’ implies that all human beings have them, equally
and in equal measure, by virtue of their humanity—regardless of sex, race,
age; regardless of high or low ‘‘birth,’’ social class, national origin, ethnic or
tribal affiliation; regardless of wealth or poverty, occupation, talent, merit,
religion, ideology, or other commitment.** Implied in one’s humanity,
human rights are inalienable and imprescriptible: they cannot be trans-
ferred, forfeited, or waived; they cannot be lost by having been usurped, or
by one’s failure to exercise or assert them.
Human rights are rights; they are not merely aspirations, or assertions
of the good. To call them rights is not to assert, merely, that the benefits
indicated are desirable or necessary; or, merely, that it is ‘‘right’’ that the
individual shall enjoy these goods; or even, merely, that it is the duty of
society to respect the immunity or provide the benefits. To call them
‘‘rights’’ implies that they are claims ‘‘as of right,’’ not by appeal to grace,
or charity, or brotherhood, or love; they need not be earned or deserved.
The idea of rights implies entitlement on the part of the holder in some
order under some applicable norm; the idea of human rights implies

* Human rights are not equivalent to, or fined is one human right of many. The will of
interchangeable with, ‘‘justice,’’ although the people, surely the will of the majority, is
some conceptions of justice—commutative, subject to the human rights of the individual,
distributive, or retributive justice, or justice although in some respects rights are limited
as fairness—are reflected in human dignity by the common interest in security, public
and in the particular rights human dignity order, health, and general welfare as demo-
requires. Human rights are not equivalent to, cratically determined.
or interchangeable with, ‘‘democracy.’’ The
contemporary articulation of the idea of ** A person may have additional rights
rights includes some democracy, declaring in a given society by virtue of such extrane-
that the will of the people is the foundation ous qualities, or of others, such as citizen-
of government, and that every human being ship, residence, or having been elected to
has the right to authentic participation in his office, but those are not everybody’s ‘‘human
or her government. But democracy thus de- rights.’’
44 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

entitlement in a moral order under a moral law, to be translated into and

confirmed as legal entitlement in the legal order of a political society. When
a society recognizes that a person has a right, it affirms, legitimates, and
justifies that entitlement, and incorporates and establishes it in the soci-
ety’s system of values, giving it important weight in competition with other
societal values.
Human rights imply the obligation of society to satisfy those claims.
The state must develop institutions and procedures, must plan, must
mobilize resources as necessary to meet those claims. Political and civil
rights require laws, institutions, procedures, and other safeguards against
tyranny, against corrupt, immoral, and inefficient agencies or officials.
Economic and social rights in modern society require taxation and spending
and a network of agencies for social welfare. The idea of human rights
implies also that society must provide some system of remedies to which
individuals may resort to obtain the benefits to which they are entitled or
be compensated for their loss.† Together, the affirmation of entitlement, the
recognition by society of an obligation to mobilize itself to discharge it, and
the implication of remedy, all enhance the likelihood that the right will be
realized, that individuals will actually enjoy the benefits to which they are
entitled.
Human rights are claims upon society. These claims may derive from
moral principles governing relations between persons, but it is society that
bears the obligation to satisfy the claims. Of course, the official representa-
tives of society must themselves respect individual freedoms and immuni-
ties; political society must also act to protect the individual’s rights against
private invasion. As regards claims to economic and social benefits, society
must act as insurer to provide them if individuals cannot provide them for
themselves. Thus, government must protect me from assault by my neigh-
bor, or from wolves, and must ensure that I have bread or hospitalization;
in human rights terms my rights are against the state, not against the
neighbor or the wolves, the baker, or the hospital. The state may arrange to
satisfy my claims by maintaining domestic laws and institutions that give
me, say, rights and remedies in tort against my neighbor, or administrative
remedies against a corrupt, misguided, or inefficient bureaucrat, or access
to public schools or health services. Those legal rights and remedies against
individuals or agencies within society give effect to my human rights claims
upon society.
The idea of human rights has implications for the relation of the
individual’s rights to other public goods. It is commonly said that human
rights are ‘‘fundamental.’’ That means that they are important, that life,
dignity, and other important human values depend on them; it does not
mean that they are ‘‘absolute,’’ that they may never be abridged for any
purpose in any circumstances. Human rights enjoy a prima facie, presump-
tive inviolability, and will often ‘‘trump’’ other public goods. Government
may not do some things, and must do others, even though the authorities
are persuaded that it is in the society’s interest (and perhaps even in the

† In some circumstances the idea of example, by resisting repressive behavior

rights may also legitimate some measure of when no effective societal protection or reme-
‘‘self-help’’ to realize one’s entitlement, for dy is available.
 CHAPTER 2 THE HUMAN RIGHTS IDEA 45

individual’s own interest) to do otherwise; individual human rights cannot

be lightly sacrificed even for the good of the greatest number, even for the
general good of all. But if human rights do not bow lightly to public
concerns, they may be sacrificed if countervailing societal interests are
important enough, in particular circumstances, for limited times and pur-
poses, to the extent strictly necessary. The Universal Declaration recog-
nizes that rights are subject to limitations determined by law ‘‘for the
purpose of securing due recognition and respect for the rights and freedoms
of others and of meeting the just requirements of morality, public order,
and the general welfare in a democratic society’’ (Art. 29[2]).
The idea of rights accepts that some limitations on rights are permissi-
ble but the limitations are themselves strictly limited. Public emergency,
national security, public order are weighty terms, bespeaking important
societal interests, but they are not to be lightly or loosely invoked, and the
conception of national security or public order cannot be so large as to
swallow the right. Derogations are permitted only in time of a public
emergency that threatens the life of the nation, not as a response to fears
(warranted or paranoid) for other values, or for the security of a particular
regime. Even in an authentic emergency, a society may derogate from
rights only to the extent strictly required by the exigencies of the situation,
and even such necessary derogations must not involve invidious inequali-
ties, and may not derogate from basic rights: they must not invade the
right to life, or involve torture or cruel, inhuman punishment, slavery or
servitude, conviction of crime under ex post facto laws, denial of rights as a
person before the law, or violate freedom of thought, conscience, or religion.
Moreover, considerations of public emergency permitting derogations, or of
national security or public order permitting limitations on certain rights,
refer to a universal standard, monitored by external scrutiny and judgment.
In sum, the idea of human rights is that the individual counts—
independent of and in addition to his or her part in the common good.
Autonomy and liberty must be respected, and the individual’s basic eco-
nomic-social needs realized, as a matter of entitlement, not of grace or
discretion (even by wise and benevolent authority, or even by ‘‘the peo-
ple’’). The individual has obligations to others and to the community, and
society may ask all individuals to give up some of their rights for the rights
of others and for the common good, but there is a core of individuality that
cannot be invaded or sacrificed. And all individuals count equally. An
individual’s right can be sacrificed to another’s right only when choice is
inevitable, and only according to some principle of choice reflecting the
comparative value of each right. No particular individual can be singled out
for particular sacrifice, except at random or by some other ‘‘neutral
principle,’’ consistent with the spirit of equal protection of the laws.
I have referred to rights as claims upon society, not against society. In
the ideology of rights, human rights are not ‘‘against society,’’ against the
interest of society; on the contrary, the good society is one in which
individual rights flourish, and the promotion and protection of every
individual’s rights are a public good. There is an aura of conflict between
individual and society only in that individual rights are asserted against
government, against those who represent society officially, and because the
46 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

human rights idea often requires that an individual’s right be preferred to

some other public good. But this apparent conflict between individual and
society is specious; in the longer, deeper view, the society is better if the
individual’s rights are respected.
Human rights, as conceived by and specified in the Universal Declara-
tion and other international instruments, are the rights of individuals.
They include the individual’s right to associate with others and to form
groups of varying character for various purposes. The individual has the
right to marry and create a family, to join a religious community and to
pursue religious, cultural, or social activities with them, to identify with an
ethnic or other group and to pursue their common interests, to join a
political party or trade union. But the essential human rights idea address-
es the rights of the individual, not of any group or collectivity.
Groups may have rights in domestic legal systems but, at least at its
origin, the human rights movement did not address them. Later, the
principal international human rights covenants declared the rights of
‘‘peoples’’ to self-determination and to sovereignty over their natural
resources, but those provisions were an exceptional addition to the general
conception in the covenants that human rights are claims of a person upon
his or her own society.* There has been a movement to recognize other
‘‘generations of rights’’—a right to peace, to development, to a healthy
environment—but none of these has been incorporated into any legally
binding human rights agreement [at the global level.]

A. THE FIRST TWO HUNDRED YEARS

Louis Henkin, The Rights of Man Today
3–13 (1988 reprint of 1978 ed.).

Origins and Antecedents

The conception of human rights as an individual’s political-legal
claims, implying limitations and obligations upon society and government,
is a product of modern history. It reflects particular political theories and
rejects others. Both the recent history and the prevailing theory reflect
their antecedents.
The origins and ancestry of ideas are rarely single or simple, or readily
disentangled. Many can claim patent to the ideas of human rights, with
some warrant, yet all claims include some exaggeration, for the various
elements of human rights have different ancestry, and attempts to corre-
late contemporary with ancient concepts court anachronism and other
distortion. The Bible, for example, stressed not rights but duties—and
these were essentially duties to God, although fellow man was the benefi-
ciary of many of them. ‘‘Society’’ and ‘‘government’’ were not central
conceptions in the life of a people governed by God through his prophets,

* Western states resisted those provi- matters that were not individual rights.
sions on the ground that they dealt with
CHAPTER 4

THE TRIUMPH OF HUMAN RIGHTS

AFTER THE SECOND WORLD WAR
Until the Second World War, the idea of rights was a domestic
constitutional idea, recognized in a few—very few—countries; and the
United States Constitution was the principal—almost exclusive—embodi-
ment of that idea.* The French Declaration of the Rights of Man and of the
Citizen, Chapter 2(C), supra, had been shelved and fallen into desuetude.
(The Constitution of the French Third Republic did not mention rights.) In
the United Kingdom, a tradition of rights, traced to Magna Carta and
supported by the common law, benefited the inhabitants of the United
Kingdom, but even their rights were subject to parliamentary supremacy.
Among political philosophers, natural law and natural rights had fallen into
disrepute, giving way to positivism and positivist theories of state sover-
eignty. Throughout the world, human rights were a matter of domestic, not
international, concern: How a nation treated its own inhabitants was its
own affair, not a subject of international politics, surely not of international
law.
All that changed with the Second World War, and the planning for and
creation of a new post-war order. The internationalization of human rights
was confirmed in the United Nations Charter, which declared that promot-
ing respect for human rights was a principal purpose of the United Nations
Organization.
In its conception as well as in its realization, the ‘‘International
Human Rights Movement’’ has not sought to supplant national protection
of human rights, but to make the protection of human rights more effective
within national systems. The international human rights movement sought
to ‘‘universalize’’ human rights, to have the idea of human rights recog-
nized and rights given protection in the constitutions and constitutional
systems of all countries. International human rights norms set forth an
agreed minimum of rights to be guaranteed by every state through its own
national legal-political system. International remedies are designed to sup-
plement national remedies to make them more effective so that human
rights are ensured in fact, everywhere.
Human rights are no longer a matter of the domestic jurisdiction of a
state, either for international law or for international politics. But the
traditional attitude that how a state treats its own inhabitants is its own

* Even in the United States, rights were had not yet been incorporated into the Four-
still a secondary concern of constitutional teenth Amendment and applied to the States.
jurisprudence (second to federalism and to See Chapter 3, supra.
separation of powers), and the Bill of Rights
135
136 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

affair dies hard. It is reflected in reluctance to raise the minimum interna-

tional standard of rights and unwillingness to reduce the permissible
limitations on rights that may be imposed in the name of the public
interest; in reluctance to adhere to covenants or conventions and a tenden-
cy to attach reservations to adherence; in resistance to external scrutiny, to
effective monitoring or judgment by independent, impartial judicial or
‘‘quasi-judicial’’ bodies. The traditional attitude also helps explain the
reluctance of states to scrutinize others and to call them to account when
they fail to live up to their human rights undertakings.
And yet, international human rights are established in law and politics,
and have had major achievements, e.g., the burgeoning of democracy in
formerly totalitarian societies, the death of apartheid in South Africa.
Perhaps the idea’s greatest achievements are incommensurable: the accep-
tance of the idea of human rights, and its universalization in the ideology of
‘‘constitutionalism’’ and in constitutions around the world; its influence in
shaping laws and institutions, and its ability to permeate national and
international cultures in ways that help ‘‘mobilize shame’’ so as to deter or
terminate gross violations.
This Chapter first introduces the profound change in international law
that occurred in the mid-twentieth century, and the parallel shift in
philosophical approaches to claims of human rights. It then gives particular
attention to the pivotal Universal Declaration of Human Rights. Section B
turns to modern critiques of human rights, including the competing ap-
proaches of communitarianism and critical legal studies, and the resurgent
claims of cultural relativism. Section C briefly examines some issues raised
by the embodiment of human rights principles in positive legal rules.

A. THE INTERNATIONALIZATION OF HUMAN RIGHTS:

ANTECEDENTS, HISTORY, AND THEORY
Louis Henkin, The Age of Rights
13–20 (1990).

The internationalization of human rights, the transformation of the

idea of constitutional rights in a few countries to a universal conception
and a staple of international politics and law, is a phenomenon of the
middle of [the twentieth] century. But it did not spring full-blown.
Historically, how a state treated persons in its territory was indeed its
own affair, implicit in its territorial sovereignty. International law devel-
oped one early exception when it recognized that how a country treats a
national of another state is the proper concern of that state. That exception
might be seen as essentially political, not humanitarian, in motivation: if a
citizen of the United States is abused elsewhere, the United States is
offended. It was widely accepted, therefore, that injustice to a stateless
person was not a violation of international law since no state was offended
thereby; surely, there was no state that could invoke a remedy for such
injustice. But assuming that the doctrine developed because the offended
state was concerned for its own rather than for human dignity, it is
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 137

significant that governments were offended by violations of the ‘‘human

rights’’ of their nationals.
In order to determine whether a state could properly claim that its
national had been denied ‘‘justice,’’ international law developed an interna-
tional standard of justice. There was no accepted philosophical foundation
for such a standard, and no agreed definition of its content; doubtless, it
was redolent of ‘‘natural rights’’ and tantamount to a notion of ‘‘fairness.’’
Whatever its underpinnings, whatever its substance, the standard for the
treatment of foreign nationals that was invoked by their governments and
acquiesced in by host governments was often higher than that—if any—
applied by these countries to their own citizens at home. The international
standard, then, was not a universal human standard, and governments that
invoked or accepted it did not suggest that it applied also to how govern-
ments treated their own citizens. The treatment accorded by a state to its
own citizens was not the concern of international law or the business of
other governments, and in fact governments rarely concerned themselves
with domestic injustice elsewhere. The few major-power intercessions—for
example, that of the United States in the nineteenth century in response to
Russian pogroms—did not invoke international law and occurred only
when violations were egregious and dramatic. This was usually the case
when there was a demand for intercession by a domestic constituency with
special affinity for the victims in the other country (as in the United States,
for example, the Irish, the Jews, and others).
International political considerations inspired other exceptions to the
principle that how a government acts toward individuals at home is a
matter of domestic concern only. Beginning in the seventeenth century,
Catholic and Protestant princes (and others) concluded agreements accord-
ing freedom of worship and wider toleration to each other’s coreligionists.
Later, governments assumed international obligations to respect freedoms
for ethnic minorities, even those who as a matter of law were nationals of
the country in which they lived; in the late nineteenth and early twentieth
century, such minority treaties were virtually imposed by the major powers
on smaller ones in Central and Eastern Europe because it was believed that
violation of minority rights led to intervention by countries that identified
with them, and thus to war. Again, the basis for international concern in
these cases was some special affinity on the part of some government for
some inhabitants of other countries, and concern for international peace,
not concern by governments generally for the basic dignity of all human
beings, including their own inhabitantsTTTT
The International Labor Organization was an early and noteworthy
contributor to international human rights. The ILO was organized after
World War I to promote common basic standards of labor and social
welfare. In the intervening seventy years, the ILO has promulgated more
than a hundred international conventions, which have been widely adhered
to and fairly well observed. Again, some might find political-economic
rather than humanitarian motivations for what the ILO achieved. The ILO,
it is said, was the West’s fearful answer to socialism, which had gained its
first bridgehead in the USSR; perhaps the conventions reflected also a
138 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

desire by developed states to reduce ‘‘unfair competition’’ from countries

with substandard labor conditions.
A less ambiguous example of early international concern for human
rights was the movement in the nineteenth century, after major powers
abolished slavery in their countries, to outlaw slavery and slave trade by
international agreement. Perhaps slavery was sufficiently egregious that no
state could be allowed to claim to contain it within its domestic jurisdiction.
Moreover, the products of slave labor were sold abroad at a competitive
advantage with goods produced by societies that had abolished slavery.
Slave trade, surely, was not an internal matter only, involving as it did
international trade and colonial competition.
In all, international relations before our time were not impervious to
the human condition inside countries, but concern for individual welfare
was framed and confined within the state system. That concern could not
spill over state borders except in ways and by means that were consistent
with the assumptions of that system, that is, when a state identified with
inhabitants of other states on recognized grounds, and that identification
threatened international order; when the condition of individuals inside a
country impinged on the economic interests of other countries. Whatever
the reasons, primitive human rights provisions appeared in international
instruments, and the seeds of international human rights were planted.

THE INTERNATIONAL HUMAN RIGHTS MOVEMENT

‘‘International human rights’’ is a term used with varying degrees of
precision (or imprecision) and with different connotations in different
contexts. In wide usage it corresponds to the ‘‘international human rights
movement,’’ born during the Second World War out of a spreading convic-
tion that how human beings are treated anywhere concerns everyone,
everywhere. That attitude itself perhaps blended several different ‘‘state-
ments’’: an assertion of fact about human psychology and emotion, that
human beings cannot close their minds and hearts to mistreatment or
suffering of other human beings; a moral statement that mistreatment or
suffering of human beings violates a common morality (perhaps also
natural law or divine law) and that all human beings are morally obligated
to do something about such mistreatment or suffering, both individually
and through their political and social institutions; an international political
statement that governments will attend to such mistreatment or suffering
in other countries through international institutions and will take account
of them also in their relations with other states. These three kinds of
statements combined to support a concept of ‘‘human rights’’ and a
program to promote their enjoyment, as implied in declarations like Presi-
dent Franklin Roosevelt’s Four Freedoms message, in various articulations
of the war aims of the Allies in the Second World War, and in their plans
for the postwar world.
The end of the war saw wide acceptance of human rights reflected in
two forms. Human rights appeared in the constitutions and laws of virtual-
ly all states. Victors in the war, for instance, the United States, wrote
human rights into law for occupied countries, as for Germany and Japan.
Later, departing colonial powers sometimes required a commitment to
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 139

human rights of newborn states as part of the price of independence; many

new states wrote them into their constitutions as their own commitment.
Older states, responding to the Zeitgeist, also emphasized human rights in
new constitutions and other national documents.
The human rights movement also took a second transnational form.
Human rights were prominent in the new postwar international order: in
treaties imposed upon vanquished nations, for example, Italy and Rumania;
in the Nuremberg Charter and the U.N. Charter; in numerous resolutions
and declarations of the new international institutions, notably, the United
Nations, and of regional institutions in Latin America and Europe and,
later, in Africa. In the United Nations, human rights were on every agenda,
and the dedicated efforts of individuals and of some governments resulted
in important international political and legal instruments, beginning with
the Universal Declaration of Human Rights and the Convention on the
Prevention and Punishment of the Crime of Genocide, both adopted with-
out dissent in 1948.* There followed a series of other resolutions and
declarations and an impressive array of other international covenants and
conventions, principally the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural
Rights, both completed in 1966 and in force since 1976. Europe and Latin
America also developed important regional human rights laws and institu-
tions. The African Charter on Human and Peoples’ Rights came into effect
in 1987. At Helsinki, in 1975, in the Final Act of the Conference on
Security and Cooperation in Europe, 35 countries from Eastern and West-
ern Europe, as well as the United States and Canada, made an important
political bargain in which Western states accepted the political status quo
in Europe and the Communist states committed themselves to respect
human rights.[**]
I stress—and distinguish—those two different manifestations of gener-
al, worldwide concern with human rights. ‘‘Universalization’’ has brought
acceptance, at least in principle and rhetoric, of the concept of individual
human rights by all societies and governments and is reflected in national
constitutions and law. ‘‘Internationalization’’ has brought agreement, at
least in political-legal principle and in rhetoric, that individual human
rights are of ‘‘international concern’’ and a proper subject for diplomacy,
international institutions, and international law.
Strictly, ‘‘international human rights,’’ that is, human rights as a
subject of international law and politics, are to be distinguished from
individual rights in national societies under national legal systems, but the
two are not unrelated in law or in politics. The international movement

* When the Universal Declaration was People’s Republic of China have also invoked
adopted, ‘‘the Communist bloc’’ (then includ- the Declaration in the United Nations.
ing Yugoslavia, but not China) abstained, as [**] These are undertakings that the par-
did Saudi Arabia and South Africa. The Euro- ties agreed would not have binding legal
pean communist states have since accepted character but are nonetheless important ‘‘po-
the Declaration in various ways, formally by litical obligations.’’ See generally Thomas
explicit reference in the Final Act of the Buergenthal, ed., Human Rights, Internation-
Conference on Security and Cooperation in al Law, and the Helsinki Accord (Montclair,
Europe, Helsinki 1975. Spokesmen for the N.J.: Allanheld, Osmun, 1977).
140 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

accepts human rights as rights that, according to agreed-upon moral

principles, the individual should enjoy under the constitutional-legal system
for his or her society. But national protections for accepted human rights
are often deficient; international human rights were designed to induce
states to remedy those deficiencies. That would be done by establishing a
common international standard by which to judge national rights systems,
and by inducing states to undertake international obligations to abide by
those standards and to submit to international ‘‘machinery’’ that would
monitor compliance. The law, politics, and institutions of international
human rights, then, do not replace national laws and institutions; they
provide additional international protections for rights under national law.
The international law of human rights is implemented largely by national
law and institutions; it is satisfied when national laws and institutions are
sufficient.
T T T
An important change took place during the process by which the idea
of rights became universal as well as international. Individual human
rights as a political idea derives both conceptually and historically from
Euro–American ideas, rooted in individual autonomy and supported by
conceptions of popular sovereignty and social contract. The rights implied
in those ideas were rights of autonomy and freedom, limitations on govern-
ment, immunities from undue, unreasonable exercises of authority. But in
the nineteenth century there began to grow another sense of right, rooted
not in individual autonomy but in community, adding to liberty and
equality the implications of fraternity. The various socialisms and the
burgeoning welfare—state ideology began to accept a broader view of the
obligations of society and the purposes of government—not only to main-
tain security and protect life, liberty, and property, but also to guarantee
and if necessary provide basic human needs. What began in Europe crossed
the Atlantic during the New Deal. In his Four Freedoms message, Franklin
Roosevelt articulated the new conception, wrapped—perhaps disguised—in
the language of freedom, when he added freedom from want to eighteenth-
century liberties. When, in the postwar years, individual rights became
universal and international, they did so in their broader conception. The
Universal Declaration of Human Rights contains not only rights to life,
liberty, and property, but also rights to social security, declaring that
everyone is entitled to the realization ‘‘of economic, social and cultural
rights indispensable for his dignity and the free development of his person-
ality’’ (Art. 22). Specified, in addition, are the right to work, to rest and
leisure, to a standard of living adequate for health and well being, and to
education.
T T T
The international law of human rights derives principally from con-
temporary international agreements in which states undertake to recog-
nize, respect, and ensure specific rights for the inhabitants of their own
countries. The older obligations in international law not to ‘‘deny justice’’
to nationals of other states are extended and supplemented—not supersed-
ed—by the new human rights law that applies to nationals and aliens alike.
The older international agreements devoted to specific conditions—the
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 141

anti-slavery conventions, the ILO conventions on labor and social condi-

tions—continue in effect, and give special and strong emphasis to particular
rights, but the benefit they brought to individuals are now subsumed in
larger conceptions. Antislavery, for example, is not only state policy re-
flected in a willingness to assume international obligations to abolish the
practice. Freedom from slavery is a right, an entitlement for every individu-
al, one of an array of individual rights that in their sum reflect a conception
of the minimum implications and needs of human dignity that states have
come to recognize and to which they are obliged to give effect.
T T T

1. CONTEMPORARY JUSTIFICATIONS OF HUMAN RIGHTS

‘‘Certainly there was, just a relatively few years ago, fairly general
agreement that the doctrine of natural rights had been thoroughly and
irretrievably discredited. Indeed this was sometimes looked upon as the
paradigm case of the manner in which a moral and political doctrine could
be both rhetorically influential and intellectually inadequate and unaccept-
able.’’ R. Wasserstrom, Rights, Human Rights, and Racial Discrimination,
61 J. PHIL. 628 (1964).
The rise of Nazism and the ascendance of Adolf Hitler began to shake
the foundations of positivism, the view that ‘‘law was law’’ and that
Hitler’s racist laws had the character and quality of law as much as the
benevolent law of any democracy.
With the birth of International Human Rights, using the language of
rights usually associated with morality and with law, came the quest for
legal and moral justifications. Traditional natural law and natural rights
were revisited and revived, but with essential modifications. The utilitar-
ianism of Bentham had to make room for safeguards against majorities
prepared to sacrifice individuals and minorities to the ‘‘greatest good of the
greatest number,’’ as the majority saw it. See H.L.A. Hart infra. Rights had
to be taken seriously. See Dworkin, infra. Philosophers prepared to accept
the idea of rights, and in particular rights rooted in principles of liberty and
equality, divided on the ‘‘rights-character’’ of welfare rights and other
economic and social rights. Some authors sought support for rights in the
idea of justice, with Rawls, A Theory of Justice as a leading vehicle for
exploring that justification. (Rawls’ difference principle has been invoked to
justify economic and social rights as well as limitations on such rights.)
Others have sought justifications for rights from other disciplines.

a. UTILITARIANISM AND RIGHTS

Professor H.L.A. Hart explains and perhaps justifies the ‘‘victory’’ of
human rights over utilitarianism.

H.L.A. Hart, Between Utility and Rights

79 COLUM. L. REV. 828, 828–31 (1979).
I.
I do not think than anyone familiar with what has been published in
the last ten years, in England and the United States, on the philosophy of
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 153

2. THE ADOPTION OF THE UNIVERSAL DECLARATION OF HUMAN

RIGHTS
The Universal Declaration of Human Rights is the fundamental docu-
ment of international human rights, and has claim to be one of the most
important international instruments of the Twentieth Century.
At its creation, the Universal Declaration was seen as but a ‘‘second
best.’’ Nongovernmental organizations, and some smaller governments,
had urged attaching to the U.N. Charter a legally binding Bill of Rights;
instead, producing such a bill of rights was deferred, and was assigned to
the new Commission on Human Rights established under the authority of
the new U.N. General Assembly. In the Commission, there was also some
desire to draft an international agreement to which states would adhere
and which would be legally binding; instead, the Commission drafted, and
the U.N. General Assembly proclaimed, the Universal Declaration of Hu-
man Rights.
The Universal Declaration converted an Eighteenth Century political
idea of natural rights largely discredited in the Nineteenth and early
Twentieth Centuries into a reigning ideology, an essential element in
‘‘constitutionalism,’’ ‘‘the rule of law,’’ ‘‘democracy.’’ It transformed a
colloquial, loosely used phrase—‘‘human rights’’—into a detailed definition,
a remarkable synthesis of civil-political rights identified with the ‘‘Liberal
State’’ and economic-social benefits of a ‘‘Welfare State,’’ which became the
accepted standard, an authoritative code. It took an idea constitutionalized
in a few countries and rendered it universal for all political societies. It took
a strictly domestic idea and ideology applicable to national political societies
and internationalized it, rendering it of international political concern at
the highest level, and the subject of international treaties and of customary
international law.
Before the Commission on Human Rights began the work that pro-
duced the Declaration, UNESCO commissioned a study by selected philoso-
phers of diverse cultural and jurisprudential origin.* Among materials
available to those who produced the Universal Declaration was also a 1945
‘‘Statement of Essential Human Rights,’’ ‘‘drafted by a committee repre-
senting principal cultures of the world, appointed by the American Law
Institute.’’ The Statement set forth ‘‘Eighteen Articles of Essential Human
Rights’’ and includes what later came to be called ‘‘economic and social’’ as
well as ‘‘civil and political’’ rights.**

* Later published as HUMAN RIGHTS, edit- (1940); a World Citizen Association Confer-
ed by Jacques Maritain (1948). ence (in a report by Prof. Quincy Wright); the
** See Statement of Essential Human Universities Committee on Post–War Inter-
Rights, 243 ANNALS AM. ACAD. POL. & SOC. SCI. 18 national Problems (1944); the highly influen-
(January 1946), reprinted in THE AMERICAN tial work by Prof. Hersch Lauterpacht, AN
LAW INSTITUTE, SEVENTY-FIFTH ANNIVERSARY INTERNATIONAL BILL OF THE RIGHTS OF MAN
1923–1998, at 261–95 (1998). Other non-gov- (1945); and the Committee on Human Rights
ernmental organizations, scholarly confer- of the Commission to Study the Organization
ences, and individual scholars and publicists of the Peace (1946). See W. Michael Reisman,
pursued the idea of an international Bill of Private International Declaration Initiatives,
Rights, and prepared draft bills or declara- in LA DECLARATION
i UNIVERSELLE DES DROITS DE
tions of rights, among them: the Institut de L’HOMME, 1948–98: AVENIR D’UN IDEAL
i COMMUN
Droit International (1929); H. G. Wells 79 (1999).
154 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

The Universal Declaration was adopted and proclaimed by the U.N.

General Assembly on December 10, 1948, the day after the Assembly
approved the first treaty of the modern human rights movement, the
Genocide Convention. Together, the Declaration and the Genocide Conven-
tion formalized and solemnized the international human rights movement.
The content of the Universal Declaration of Human Rights and its
current status in international law are further discussed in Chapter 5(C),
infra.
John Humphrey, the first and thereafter a long-serving director of the
Human Rights Division of the United Nations Secretariat, played a major
role in drafting the Universal Declaration. A major contribution has also
been attributed to Commission members René Cassin of France, Eleanor
Roosevelt (who served as Chair), and Charles Malik of Lebanon. See JOHN
P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVENTURE 31–
33, 42–43 (1984), and The Universal Declaration of Human Rights: Its
History, Impact and Juridical Character, in THIRTY YEARS OF HUMAN RIGHTS
AT THE UNITED NATIONS 21–37 (1979); MARY ANN GLENDON, A WORLD MADE
NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
(2001); JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:
ORIGINS, DRAFTING, AND INTENT (1999).
Now would be a good time to read the Universal Declaration, rather
than only read about it. Read the Preamble as well as the individual
articles: how does the Preamble relate to the Articles, and how do the
Articles relate to one another?

———

Consider the following interpretation:

The Universal Declaration, with its thirty short articles, seems at
first glance to invite comparison with older rights documents such as
the Magna Carta, the French Declaration of the Rights of Man and the
Citizen, and the first ten amendments to the U.S. Constitution. In
recent years, American influence upon the international human rights
movement has become so pervasive that the Declaration is now widely
read as Americans read the Bill of Rights: as a string of essentially
separate guarantees. As we shall see, however, that approach is inap-
propriate for an organic document like the Declaration. The Declara-
tion is not a list or a ‘‘bill,’’ but a set of principles that are related to
one another and to certain over-arching ideas. It possesses an integrity
which has considerable strength when the document is read as it was
meant to be read, namely as a whole.
Cassin often compared the Declaration to the portico of a temple.
(He had no illusions that the document could be anything more than
an entryway to a future where human rights would be respected.) He
saw the Preamble, with its eight ‘‘whereas’’ clauses, as the courtyard
steps moving by degrees from the recognition of human dignity to the
unity of the human family to the aspiration for peace on earth. The
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 155

general principles of dignity, liberty, equality, and fraternity, pro-

claimed in Articles 1 and 2, are the portico’s foundation blocks. The
facade consists of four equal columns crowned by a pediment. The four
pillars are: the personal liberties (Articles 3 through 11); the rights of
the individual in relation to others and to various groups (Articles 12
through 17); the spiritual, public, and political liberties (Articles 18
through 21); and the economic, social, and cultural rights (Articles 22
through 27). The pediment is composed of the three concluding arti-
cles, 28 through 30, which establish a range of connections between the
individual and society.
Mary Ann Glendon, Knowing the Universal Declaration of Human Rights,
73 NOTRE DAME L. REV. 1153, 1162–63 (1998).
Does the Preamble justify the content of Articles 1 through 30? Do
Articles 1 and 2 justify the content of the succeeding Articles?

Louis Henkin, The Age of Rights

6–10 (1990).

The idea of rights here distilled from contemporary international

instruments responds, I believe, to common moral intuitions and accepted
political principles. Those intuitions and principles have not been authori-
tatively articulated. Developed during the decades following the Second
World War, international human rights are not the work of philosophers,
but of politicians and citizens, and philosophers have only begun to try to
build conceptual justifications for them. The international expressions of
rights themselves claim no philosophical foundation, nor do they reflect any
clear philosophical assumptions; they articulate no particular moral princi-
ples or any single, comprehensive theory of the relation of the individual to
society. That there are ‘‘fundamental human rights’’ was a declared article
of faith, ‘‘reaffirmed’’ by ‘‘the peoples of the United Nations’’ in the United
Nations Charter. The Universal Declaration of Human Rights, striving for
a pronouncement that would appeal to diverse political systems governing
diverse peoples, built on that faith and shunned philosophical exploration.
Because of that faith—and of political and ideological forces—governments
accepted the concept of human rights, agreed that they were properly
matters for international concern, cooperated to define them, assumed
international obligations to respect them, and submitted to some interna-
tional scrutiny as to their compliance with these obligations.
International human rights derive from natural rights theories and
systems, harking back through English, American, and French constitu-
tionalism to John Locke et al., and earlier natural rights and natural law
theory. In its American version, that constitutionalism included concepts of
original individual autonomy translated into popular sovereignty; of a social
compact providing for continued self-government through accountable rep-
resentatives; of limited government for limited purposes; and retained,
inalienable, individual rightsTTTT But the profound influence of that consti-
tutionalism on international acceptance of human rights did not depend on,
or take with it, commitment to all the underlying theory. International
human rights reflect no comprehensive political theory of the relation of
156 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

individual to society, only what is implied in the idea of individual rights

against society. Human rights are ‘‘inherent’’ but not necessarily ‘‘re-
tained’’ from any hypothetical state of nature anteceding government.
There is a nod to popular sovereignty, but nothing of social compact or of
continuing consent of the governed. Retained rights are not the condition
of government, and violating them does not necessarily give rise to a right
to undo government by revolution. Inevitably, international human rights
also implicate the purposes for which governments are created, but they
surely do not imply a commitment to government for limited purposes only.
Born after various forms of socialism were established and spreading, and
commitment to welfare economics and the welfare state was nearly univer-
sal, international human rights implied rather a conception of government
as designed for all purposes and seasons. The rights deemed to be funda-
mental included not only limitations precluding government from invading
civil and political rights, but positive obligations for government to promote
economic and social well-being, implying government that is activist, inter-
vening, planning, committed to economic-social programs for the society
that would translate into economic-social rights for the individualTTTT
Those who built international human rights perhaps saw these rights
as ‘‘natural,’’ but in a contemporary sense; human rights correspond to the
nature of human beings and of human society, to his or her psychology and
its sociology. Rights (to quote from the principal international instruments)
‘‘derive from the inherent dignity of the human person.’’ ‘‘Recognition TTT
of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world.’’ Respect for, and
observance of, human rights will help create ‘‘conditions of stability and
well-being which are necessary for peaceful and friendly relations among
nations.’’ We are not told what theory justifies ‘‘human dignity’’ as the
source of rights, or how human dignity is defined or its needs determined.
We are not told what conception of justice is reflected in human rights, or
how preserving human rights will promote peace in the world.
Necessarily, however, the idea of rights reflected in the instruments,
the particular rights recognized, and the consequent responsibilities for
political societies, imply particular political ideas and moral principles.
International human rights does not hint at any theory of social contract,
but it is committed to popular sovereignty. ‘‘The will of the people shall be
the basis of the authority of government’’ and is to ‘‘be expressed in
periodic and genuine elections which shall be by universal and equal
suffrage.’’ It is not required that government based on the will of the
people take any particular form. Presumably, Western-style presidential or
parliamentary systems and communist ‘‘democratic centralism’’ might both
be equally consistent with the international standard—provided the people
in fact have control over how they are governed, provided they have the
freedom and the means to inform their governors of their wishes, provided
the governors are accountable in fact and the people can replace them at
frequent, regular intervals. In any system, government by bureaucracy is
presumably not government by the people if, although political authority is
conceived and couched in legal forms and decorated with occasional formal
votes, arbitrary power in fact prevails, without meaningful accountability
and meaningful opportunity for the people to terminate or control the
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 157

exercise of such power. The will of the people is not the basis of the
authority of government if the people are not free to change their form of
government or their political and economic system, for instance, to move
toward—or away from—socialism or a market economy.*
International human rights has no commitment to any particular
economic system, and a society is free to choose between a market economy
and socialism and among the various gradations and combinations of each.
Some of the human rights recognized, however, imply commitment to some
political-economic principles. Every person has a right to own property and
not to be arbitrarily deprived of it; the right to work and be free to choose
employment; to enjoy trade union protection against a powerful employer,
private or public; and to be protected against unemployment or its conse-
quences.
International human rights imply a broad conception of the purposes
and responsibilities of government. The obligation of society to ensure
rights may require government to plan, to regulate, to tax and to spend.
Perhaps civil and political rights can be respected—in a fortunate society—
by a civilized citizenry, and a minimal, honest, and benign officialdom,
without any special societal interventions. But if citizen civility and official
self-restraint are insufficient, the society must intervene, by civil rights acts
and other laws, by institutions and remedies governing the behavior of
citizen and official. Economic and social rights (food, shelter, work, health,
and education) can perhaps be secured—in a fortunate society—by private
initiative and means, by market forces, by employment contracts, by
private insurance. But society must ensure these rights, must act as
‘‘insurer’’ for them; it must do what is necessary to see that such rights are
in fact enjoyed, whether by improving the performance of private agencies
or by supplementing or replacing these efforts by official programs.
Beneath the responsibilities of government for individual rights are
political principles governing the relation of the individual to political
authority, and beneath those political principles appear to be moral princi-
ples governing relations between individual human beings. If government
responds to the will of the governed, the undertaking by governments to
respect and ensure individual rights implies that the governed recognize
these rights for each of them, and assume responsibility for these rights
even when other interests, including other common interests, compete. The
individual must recognize the obligation, both as an individual and as a
member of the sovereign people (the majority), to respect and ensure those
rights, to support the laws and institutions and the costs necessary to make
the agreed-upon rights secure.
Political-moral principles are implied both in the idea of rights and in
the particular rights recognized. Of course, a commitment to fair trial in
the criminal process reflects a common sense of justice requiring that a
person—not only I, but any other person—not be found guilty and deprived
of freedom if he or she is innocent. Political-moral principles are implied in

* Of course, even the will of the people rights of individuals or minority groups.
does not justify government in violating the
158 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

the fact that individuals not only demand for themselves, but also recognize
for others equally, the autonomy, the physical integrity and freedom, the
rights to due process, to property, to privacy, to ‘‘personhood,’’ to liberties,
as well as to basic human needs and other economic and social rights.
Less obvious are the moral assumptions underlying the other disposi-
tions of the idea of rights. In general, what government may not do are
those things we may not do to each other, and the reason why officials may
not do them—say, deprive us of our life, liberty, privacy, or property—is
because ordinarily no individual may do that to another. Human dignity
requires respect from my neighbor as well as from the state. Under the
international instruments the state is required not only to respect but to
ensure rights, that is, ensure respect for them by private persons. By what
moral calculus, then, are officials permitted to do to an individual what his
neighbor may not?
Implicit political-moral principles accept limitations on individual
rights for the common good—to protect society against external enemies
and internal disorder, or to regulate individual activity for the benefit of
others and for the common welfare. Therefore, the state is permitted to
take away my freedom through the criminal law, at least when imprison-
ment is designed to prevent and rehabilitate, probably also if it aims to
deter, and perhaps even when the purpose is to express moral judgment by
societal retribution. It is permissible to take away my property through
taxation in order to provide for the common defense and the public welfare.
From some perspectives at least, it may be assumed that these limitations
on the individual are acceptable because the individual consents to them, or
consented to them, in principle and in advance, by living in society, and
thereby submitting to government by democratic process. Individuals con-
sent a priori, it can be argued, even to the possibility that they might be
sent to their deaths for the common cause, on the assumption, or hope,
that the need will not arise, and the sacrifice not prove necessary; that if
someone will have to be sacrificed it will be someone else; that others
submit to the same risk for one’s own welfare, and that the selection will be
by lot or chance or at least according to some rational, neutral principle.
Whether such consent to the sacrifice of one’s rights is authentic, whether
an individual is really free to leave society so that his or her continuing
consent can be assumed, is debatable and may differ from society to society,
time to time, context to context, individual to individual. Or, perhaps—
without insisting on consent and contract as the basis for rights and for
limitations on rights—limitations on individual liberty or property are to be
justified on notions of equity and practicability and some uncertain blend of
the rights idea with utilitarian dedication to the ‘‘general welfare’’ or to
maximum total happiness.*
The commitment in the human rights idea to the welfare society may
imply other political-moral principles or assumptions. It implies, I think,
that the basic human needs of those unable to provide for themselves are
the responsibility of all, and that it is permissible if not obligatory to take

* The rights idea, however, rejects the fy even the complete sacrifice of individuals if
extreme utilitarian position that would justi- it would increase total happiness.
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 159

from those who have (as by taxation) to provide for those who have not.
Such moral obligation has been supported on various grounds:
1 In the twentieth century, societies and political institutions are created
and maintained for broad purposes; not only for security against one’s
neighbor and against external aggression, but to assure the welfare of all
and each. The social contract includes agreement to create a welfare state.
1 In a society with a complex, integrated economy, the economically
disadvantaged—for example, the unemployed—are victims of deficiencies in
the economic system, often of policies that purposefully maintain such
disadvantages for systemic ends. Those who benefit from the system are
therefore morally obligated to help those who suffer from it, at least to the
extent of assuring their basic human needs.
1 We are all members of a community that benefits all. Community and
communality imply obligations, and high among them is the obligation to
assure basic human needs for those who cannot satisfy their own.
1 We have moved away from the moral intuitions of the Anglo–Saxon
tradition which saw the Good Samaritan as acting from charity, not from
moral obligation. Today, we are coming to believe, one is morally obligated
to save a person in danger, at least if it can be done without undue risk or
cost to oneself. There is, then, a moral obligation, for one who can, to save
another from death or serious injury, as by starvation. If, in the case of the
hungry in the community, that obligation is indeterminate in that the
moral obligation to save any one person does not ordinarily attach to any
other particular person, it attaches to all members of the community
collectively. The collective obligation can be met by any collective action but
effectively falls on the political authorities of society to meet by public
action with public funds.
The moral foundations for human rights within society apply to all
societies, and perhaps also between societies, as economies and polities
become interdependent and community and communality expand. The idea
of human rights, born in the West, has spread and, nominally at least, been
universally accepted. Sovereign states continue to resist, but the implemen-
tation of the human rights idea has been ‘‘internationalized,’’ and become
the concern of the international community of states.

Notes and Questions

1. The Universal Declaration of Human Rights can be seen as an expres-
sion of a common moral intuition, of the Zeitgeist, at the middle of the
Twentieth Century, in the wake of the Holocaust and of the Nuremberg
trials. The Declaration asserts the idea of rights and the universality of
rights. It declares rights to be ‘‘equal and inalienable’’ and links them to
‘‘the inherent dignity’’ of all human beings.
The Preamble to the Declaration offers also teleological justifications
for human rights: they are ‘‘the foundation of freedom, justice and peace’’;
they are the highest aspiration of the common people; protection for human
rights will avoid recourse to rebellion; protection of human rights is
essential to ‘‘friendly relations among nations.’’
168 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

think that CLS has ignored the degree to which rights-assertion and
the benefits of rights have helped blacks, other minorities, and the
poor.
T T T
For the historically disempowered, the conferring of rights is symbolic
of all the denied aspects of humanity: rights imply a respect which
places one within the referential range of self and others, which
elevates one’s status from human body to social being. For blacks,
then, the attainment of rights signifies the due, the respectful behav-
ior, the collective responsibility properly owed by a society to one of its
own.
Patricia Williams, Alchemical Notes: Reconstructed Ideals from Deconstruct-
ed Rights, 22 HARV. C.R.–C.L. L. REV. 401, 404–05, 416 (1987). See also
Symposium, Minority Critiques of the Critical Legal Studies Movement, 22
HARV. C.R.–C.L. L. REV. 297 (1987); CRITICAL RACE THEORY: THE KEY WRITINGS
THAT FORMED THE MOVEMENT (Kimberle Crenshaw, Neil Gotanda, Gary
Peller & Kendall Thomas eds., 1995). On Critical Legal Studies generally,
see, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (1987); Critical
Legal Studies Symposium, 36 STAN. L. REV. 1 (1984); Critical Legal Studies
(Début de Siècle): A Symposium on Duncan Kennedy’s A Critique of
Adjudication, 22 CARDOZO L. REV. 701 (2001); Mark Tushnet, Critical Legal
Studies: A Political History, 100 YALE L.J. 1515 (1991); William Aceves,
Critical Jurisprudence and International Legal Scholarship: A Study of
Equitable Distribution, 39 COLUM. J. TRANSNAT’L L. 299 (2001).

3. CULTURAL RELATIVISM: ARE HUMAN RIGHTS UNIVERSAL?

The International Human Rights Movement, born during the Second
World War, and the United Nations Charter, assumed the universality of
the human rights idea, as implied in the very term. Human rights were the
rights of all human beings. The Universal Declaration declared the human
rights of all human beings, inherent in the human dignity of all human
beings.
During the Cold War, disputes between East and West, and between
the West and the Third World, on the subject of human rights often focused
on the relative importance or priority of certain rights, especially economic
and social rights as opposed to civil and political rights. After the Cold War,
challenges to the universality of human rights were increasingly articulated
in the form of assertions of the cultural relativity of rights. Is the concept
of human rights, or the modern structure of human rights, a Western
cultural construct unjustifiably imposed on other societies?
What does it mean to make a claim of ‘‘cultural relativism’’? In
(Western) moral philosophy, a distinction is drawn between (1) the descrip-
tive claim that, as an empirical matter, people in different cultures hold
different moral beliefs on many important issues; and (2) the meta-ethical
claim that the validity of moral judgments does not transcend cultures, but
depends on the cultural framework within which the judgment is made.
See, e.g., Guyora Binder, Cultural Relativism and Cultural Imperialism in
Human Rights Law, 5 BUFF. HUM. RTS. L. REV. 211 (1999); Chris Gowans,
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 169

Moral Relativism, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N.

Zalta, ed. Summer 2008 Ed.), available at http:// plato.stanford.edu/ar-
chives/spr2004/entries/moral-relativism/. Meta-ethical cultural relativist
theories are one subcategory of meta-ethical moral relativist theories,
which consider more generally that the validity of moral judgments is
relative to the practices of a group of persons. Note that the descriptive
claim (1) does not directly imply the meta-ethical claim (2) (because
people’s actual moral judgments might just be mistaken). Nor does the
meta-ethical claim (2) directly imply that people in two different cultures
will actually disagree with regard to any particular issue.
Even the descriptive claim has been criticized on the ground that
supposed moral disagreements between cultures may result from the appli-
cation of a shared moral value in different factual circumstances. See
Gowans, supra. On closer examination, the apparent disagreement might
turn on an error in the way the moral judgments are described, not on
cultural relativism. To give a simple example, deliberately insulting people
without reason may be wrong in both cultures, but what counts as an
insult may differ.
A cultural relativist critique could be directed at the concept of human
rights itself, from within a culture that recognized no human rights
whatsoever. Or it could accept some human rights norms that its own
culture shares, while rejecting others because they are inconsistent with its
values. Consider whether the following two selections rely on the assump-
tion of cultural relativism.

———

Josiah A. M. Cobbah, African Values and the Human

Rights Debate: An African Perspective
9 HUM. RTS. Q. 309, 320–29 (1987).*

T T T
For the African, a philosophy of existence can be summed up as: ‘‘I am
because we are, and because we are therefore I am.’’ A comparison of
African and Western social organization clearly reveals the cohesiveness of
African society and the importance of kinship to the African lifestyle.
Whereas Westerners are able to carry out family life in the form of the
nuclear family and often in isolation from other kin, Africans do not have
the concept of a nuclear family and operate within a broader arena of the
extended family.
T T T
The cohesion of the African family is derived in a large measure from
the existence of explicit rules of appropriate behavior. As a family member,
therefore, the African is made to ‘‘suffer’’ what will be considered as

* Cobbah, Josiah A. M. African Values Hopkins University Press. Reprinted with

and the Human Rights Debate: An African permission of The Johns Hopkins University
Perspective. Human Rights Quarterly 9:3 Press.
(1987), pp.320–329 (excerpt). a The Johns
170 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

inconveniences by the Westerner but at the same time the African holds an
entitlement to visit the same on his kinsman. Sudarkasa has organized the
complexity of rights and duties around four underlying principles: respect,
restraint, responsibility, and reciprocity.
‘‘Respect is the cardinal guiding principle for behavior within the
family and in the society at large.’’ Although African society is communal,
it is hierarchical. Respect governs the behavior of family members toward
the elders in the familyTTTT As one grows up in the society, therefore, one
acquires seniority rights and moves up in the hierarchy of the communi-
tyTTTT
T T T
Writing on political rights in traditional African society, Wai argued
that African political systems were marked by checks and balances, rela-
tionships that ensured that rulers did not become dictatorial. Thus among
the Akan [of Ghana] one finds that the traditional political authority
structure still engulfs family heads who have a consultative relationship
with the chief. Traditionally, just as every member of the extended family
had a distinct role to play as a member of the family, every extended family
as a whole performed a given state function within the traditional political
structure. The search for appointees to specific state offices took plac[e]
within specific extended families.
Among the Akan there is a hierarchical political structure comprising
an intricate network of chiefs and subchiefs, linguists, state craftsmen,
state musicians, and warriors. Thus every individual in the system is
predetermined to play a role in the total functioning of the society. Each
office or role bears its own privileges. Given the absence of individualism,
one accepts one’s role in this network without comparison to the role of
one’s neighbor who may belong to another extended family and may thus
occupy a ‘‘higher’’ spot in the hierarchy. In effect, the traditional Akan
recognizes that in the functioning of society (for example in times of war)
families may need to fall into a hierarchy to assure the smooth running and
survival of the society.
T T T
African communalism is more than a mere lifestyle. It is a worldview.
It may indeed be an exaggeration to claim that the individual in African
society is completely invisible within the clan or kin. The African jurist,
Elias, pointed out that ‘‘[a]nyone who cares to look into the actual social
relations between individuals who make up the group—whether this is
family, clan or tribe—will realize soon enough that disputes do take place
in all manner of situations.’’ The point is that problems revolving around
individual disagreements and preferences are present but these disputes
are resolved not on the basis of a worldview that posits individual autono-
my. The African worldview places the individual within a continuum of the
dead, the living, and the yet unborn. It is a worldview of group solidarity
and collective responsibility. In effect, in the same way that people in other
cultures are brought up to assert their independence from their communi-
ty, the average African’s worldview is one that places the individual within
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 171

his community. This worldview is for all intents and purposes as valid as
the European theories of individualism and the social contract.
T T T
The worldview that predominates African societies provides an ap-
proach to human dignity that is not only different from the natural rights
approach but may indeed serve to improve the quality of the human rights
discussion at the international levelTTTT The post-independence liberal
state in Africa has not been flexible enough to accommodate the cultural
nuances of Africans. African state constitutions have been everything but
African. Fundamentally they have followed a natural right-individual rights
approach, implicitly based on an expectation of a political transformation of
Africans into Europeans. Having inherited the liberal state from the
colonial past, African countries have been held by the international (West-
ernized) community to the tenets of Western liberalism. The approach
taken in this paper is based on the belief that although Africans may have
to accept the political boundaries they inherited from their colonial mas-
ters, they do not have to accept willy-nilly all the baggage of Western
liberalism.
For example, from the perspective of Western democracies the one-
party State in Africa has been condemned as being authoritarian and
undemocratic. From the same perspective Western scholars and Wester-
nized scholars are increasingly analyzing the human rights abuses of the
African woman, the African child, and the list goes on. There is no doubt
that within African societies injustices of many types exist and human
rights activists, both African and non-African, should be concerned about
these injustices. The question, however, remains as to how these injustices
should be corrected.
It is my contention that to correct injustices within different cultural
systems of the world it is not necessary to turn all people into Westerners.
Western liberalism with its prescription of human rights has had a worth-
while effect not only on Westerners but on many peoples of this world. It is,
however, by no means the only rational way of living human lifeTTTT
Instead of imposing the Western philosophy of human rights on all cultures
one’s effort should be directed to searching out homeomorphic equivalents
in different cultures. In other words, we should understand that homeo-
morphism is not the same as equivalence and strive to discover peculiar
functional equivalence in different cultures.
T T T

Bilahari Kausikan, Asia’s Different Standard

92 Foreign Policy 24, 34–40 (Fall 1993).*
East and Southeast Asian countries are increasingly conscious of their
own civilizations and tend to locate the sources of their economic success in
their own distinctive traditions and institutions. The self-congratulatory,
simplistic, and sanctimonious tone of much Western commentary at the
end of the Cold War and the current triumphalism of Western values grate
on East and Southeast Asians. It is, after all, a West that launched two
world wars, supported racism and colonialism, perpetrated the Holocaust

* Reproduced with permission from foreignpolicy.com. a 1993 by the Washing-

FOREIGN POLICY #92 (Fall 1993), www. tonpost Newsweek Int., LLC.
172 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

and the Great Purge, and now suffers from serious social and economic
deficienciesTTTT
T T T
The hard core of rights that are truly universal is smaller than many
in the West are wont to pretend. Forty-five years after the Universal
Declaration was adopted, many of its 30 articles are still subject to debate
over interpretation and application—not just between Asia and the West,
but within the West itself. Not every one of the 50 states of the United
States would apply the provisions of the Universal Declaration in the same
way. It is not only pretentious but wrong to insist that everything has been
settled once and forever. The Universal Declaration is not a tablet Moses
brought down from the mountain. It was drafted by mortals. All interna-
tional norms must evolve through continuing debate among points of view
if consensus is to be maintained.
Most East and Southeast Asian governments are uneasy with the
propensity of many American and some European human rights activists to
place more emphasis on civil and political rights than on economic, social,
and cultural rights. They would probably not be convinced, for instance, by
a September 1992 report issued by Human Rights Watch entitled Indivisi-
ble Human Rights: The Relationship of Political and Civil Rights to
Survival, Subsistence and Poverty. They would find the report’s argument
that ‘‘political and civil rights, especially those related to democratic
accountability,’’ are basic to survival and ‘‘not luxuries to be enjoyed only
after a certain level of economic development has been reached’’ to be
grossly overstated. Such an argument does not accord with their own
historical experience. That experience sees order and stability as precondi-
tions for economic growth, and growth as the necessary foundation of any
political order that claims to advance human dignity.
The Asian record of economic success is a powerful claim that cannot
be easily dismissed. Both the West and Asia can agree that values and
institutions are important determinants of development. But what institu-
tions and which values? The individualist ethos of the West or the commu-
nitarian traditions of Asia? The consensus-seeking approach of East and
Southeast Asia or the adversarial institutions of the West? The post-Marcos
Philippines—which combines what is probably the most democratic consti-
tution and political institutions in Southeast Asia with mismanagement,
lawlessness, and the worst economic record in ASEAN—must at least open
to question whether there are valid alternative relationships between civil-
political and economic-social rights.
T T T
At any rate, many East and Southeast Asians tend to look askance at
the starkly individualistic ethos of the West in which authority tends to be
seen as oppressive and rights are an individual’s ‘‘trump’’ over the state.
Most people of the region prefer a situation in which distinctions between
the individual, society, and state are less clear-cut, or at least less adver-
sarial. It will be far more difficult to deepen and expand the international
consensus on human rights if East and Southeast Asian countries believe
 CHAPTER 4 THE TRIUMPH OF HUMAN RIGHTS AFTER THE SECOND WORLD WAR 173

that the Western promotion of human rights is aimed at what they regard
as the foundation of their economic successTTTT
T T T
[P]opular pressures against East and Southeast Asian government may not
be so much for ‘‘human rights’’ or ‘‘democracy’’ but for good government:
effective, efficient, and honest administrations able to provide security and
basic needs with good opportunities for an improved standard of living. To
be sure, good government, human rights, and democracy are overlapping
concepts. Good government requires the protection of human dignity and
accountability through periodic fair and free elections. But they are not
always the same thing; it cannot be blithely assumed, as many in the West
have, that more democracy and human rights will inevitably lead to good
government, as the many lost opportunities of the Aquino government
demonstrated.* The apparent contradictions mirror a complex reality: Good
government may well require, among other things, detention without trial
to deal with military rebels or religious and other extremists; curbs on
press freedoms to avoid fanning racial tensions or exacerbating social
divisions; and draconian laws to break the power of entrenched interests in
order to, for instance, establish land reforms.
Those are the realities of exercising authority in heterogeneous, un-
evenly modernized, and imperfectly integrated societies with large rural
populations and shallow Western-style civic traditions. The competing
Asian elites who today use human rights rhetoric to advance their causes
may find good reason to retain and use such measures if ever they come to
power and encounter the realities of governance. Espousing or claiming
rights in the midst of political struggle does not mean they will or can be
granted once the struggle is won. After all, their predecessors found it
prudent to retain colonial laws that had been used against them and that
they too denounced as contrary to human rightsTTTT
T T T
Future Western approaches on human rights will have to be formulat-
ed with greater nuance and precision. It makes a great deal of difference if
the West insists on humane standards of behavior by vigorously protesting
genocide, murder, torture, or slavery. Here there is a clear consensus on a
core of international law that does not admit of derogation on any grounds.
The West has a legitimate right and moral duty to promote those core
human rights, even if it is tempered by limited influence. But if the West
objects to, say capital punishment, detention without trial, or curbs on
press freedoms, it should recognize that it does so in a context where the
international law is less definitive and more open to interpretation and
where there is room for further elaboration through debate. The West will
have to accept that no universal consensus may be possible and that states
can legitimately agree to disagree without being guilty of sinister designs or
bad faith. Trying to impose pet Western definitions of ‘‘freedom’’ and

* [The reference is to Corazon Aquino, who served as President from 1986 to 1992.—
who led the People Power Revolution that Eds.]
restored democracy to the Philippines, and
174 PART I HUMAN RIGHTS: IDEA AND IDEOLOGY

‘‘democracy’’ is an incitement to destructive conflict, best foregone in the

interest of promoting real human rights.
The international law on human rights provides a useful, relatively
precise, and common framework for the human rights dialogue between
West and East. It helps prevent ‘‘human rights’’ from becoming a mere
catchphrase for whatever actions the West finds contrary to its preferences
or too alien to comprehend. But the implementation, interpretation, and
elaboration of the international law on human rights is unavoidably politi-
cal. It must reflect changing global power structures and political circum-
stances. It will require the West to make complex political distinctions,
perhaps refraining from taking a position on some human rights issues,
irrespective of their merits, in order to press others where the prospects for
consensus are better.
T T T

Notes and Questions

1. If cultural relativism provides the correct account of the validity of
moral propositions, then what is objectionable about slavery, apartheid, or
caste systems? Should efforts by outsiders to abolish such practices in
cultures where they are approved be abandoned? Does it follow from
cultural relativism that interference with practices favored in other cul-
tures is wrong? From whose perspective?
2. The authors of the preceding excerpts were an academic from Ghana
and a diplomat from Singapore. To what extent do their arguments
challenge the very idea of human rights? To what extent do they challenge
particular human rights, and if so, which human rights? To what extent do
they criticize erroneous assumptions about the consequences of shared
human rights norms in different factual circumstances?
3. What changes, if any, to the Universal Declaration would be required to
accommodate a traditional hierarchical society in which social roles are
inherited and gender roles are distinct?
4. What does Kausikan mean when he says that the international law of
human rights ‘‘must reflect changing global power structures’’? Should the
Universal Declaration be renegotiated periodically as states or regions gain
or lose power?
5. Where cultures disagree on the interpretation of a human right that
they both value at some general level, how should more concrete and
specific disputes about the right be resolved? How are disputes about the
interpretation of a right within a culture or a society resolved? Through
dialogue, by adjudication, by force? By means of federalism or decentraliza-
tion? Should the same methods be used at the international level?
6. Do cultural relativist critiques of human rights presuppose that ‘‘cul-
tures’’ are static, homogeneous, and distinct? What follows if cultures are
dynamic, contested, and overlapping, particularly under contemporary con-
ditions of trade, politics and technology?
7. Consider the following argument:
198 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

4. JUS COGENS

David S. Mitchell, The Prohibition of Rape in Interna-

tional Humanitarian Law as a Norm of Jus Cogens:
Clarifying the Doctrine
15 DUKE J. COMP. & INT’L L. 219, 228–29, 231–32 (2005).

Jus cogens means compelling or higher law. The jus cogens doctrine
defines peremptory norms from which no derogation is permitted and is
essentially a label placed on a principle whose perceived importance, based
on certain values and interests, rises to a level that is acknowledged to be
superior to another principle, norm or rule and thus overrides it. Drafted in
1969, Article 53 of The Vienna Convention on the Law of Treaties formally
defines the international legal principle of jus cogens:
A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is
a norm accepted and recognized by the international community of
states as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general interna-
tional law having the same character.
Peremptory norms represent the top of the international legal hierar-
chy and take precedence over TTT other sources of international law. They
protect the most compelling and essential interests of the international
community as a whole and invalidate treaty law and other ‘‘ordinary’’ rules
of customary international law not endowed with the same normative
forceTTTT
T T T
Jus cogens norms are notoriously difficult to identify, developing over
time through the general consensus of the international community. Al-
though jus cogens is widely acknowledged as a principle of international
law, there is no agreement on what constitutes the corpus of jus cogens
norms. Generally speaking, however, such a list would presumably include
genocide, crimes against humanity, war crimes, torture, aggression, piracy,
and slavery as accepted peremptory norms.

B. HUMAN RIGHTS AGREEMENTS UNDER INTERNATIONAL

LAW
Human rights covenants and conventions are governed by the inter-
national law of treaties, including the rules governing their formation, in-
terpretation, responsibility for violations, and termination. However, the
special character of human rights treaty obligations has inspired some dis-
tinctive doctrines and practices, for example in respect of reservations, the
methodologies for interpreting treaty-protected rights and freedoms, and
the entities responsible for compliance with those rights and freedoms.
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 199

1. HUMAN RIGHTS AGREEMENTS AND THE LAW OF TREATIES

Like other treaties, human rights agreements are governed by the
international law of treaties, which has long been customary international
law but was codified in the Vienna Convention on the Law of Treaties, U.N.
Doc. A/CONF. 39/27 (1969). The United States has not ratified the Vienna
Convention, but it has accepted most of its provisions as accurately reflect-
ing the customary law of treaties.

Reservations to Treaties: In General

The rules governing reservations to treaties appear in Articles 19–21 of
the Vienna Convention. The Restatement articulates these rules in section
313:

Restatement (Third) of the Foreign Relations Law of

the United States
§ 313 (1987).

(1) A state may enter a reservation to a multilateral international agree-

ment unless
(a) reservations are prohibited by the agreement,
(b) the agreement provides that only specified reservations not includ-
ing the reservation in question may be made, or
(c) the reservation is incompatible with the object and purpose of the
agreement.
(2) A reservation to a multilateral agreement entered in accordance with
Subsection (1) is subject to acceptance by the other contracting states as
follows:
(a) a reservation expressly authorized by the agreement does not
require subsequent acceptance by the other contracting states;
(b) where application of the agreement in its entirety among the
parties is an essential condition to their consent, a reservation requires
acceptance by all the parties;
(c) where a reservation is neither authorized nor prohibited, expressly
or by implication,
(i) acceptance of a reservation by another contracting state consti-
tutes the reserving state a party to the agreement in relation to
the accepting state as soon as the agreement is in force for those
states;
(ii) objection to a reservation by another contracting state does
not preclude entry into force of the agreement between the reserv-
ing and accepting states unless a contrary intention is expressed
by the objecting state.
T T T
200 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

Comment
a. Reservation defined. A reservation is defined in the Vienna Con-
vention, Article 2(1)(d), as a unilateral statement made by a state when
signing, ratifying, accepting, approving, or acceding to an international
agreement, whereby it purports to exclude or modify the legal effect of
certain provisions of that agreement in their application to that stateTTTT
T T T
g. Declarations and understandings. When signing or adhering to an
international agreement, a state may make a unilateral declaration that
does not purport to be a reservation. Whatever it is called, it constitutes a
reservation in fact if it purports to exclude, limit, or modify that state’s
legal obligation. Sometimes, however, a declaration purports to be an
‘‘understanding,’’ an interpretation of the agreement in a particular re-
spect. Such an interpretive declaration is not a reservation if it reflects the
accepted view of the agreement. But another contracting party may chal-
lenge the expressed understanding, treating it as a reservation which it is
not prepared to accept.

———
For a recent analysis of how the above reservations rules operate in
practice, see Edward T. Swaine, Reserving, 31 YALE J. INT’L L. 307, 314–23
(2006).
When the United States ratifies an international human rights agree-
ment, it almost always includes reservations, understandings, and declara-
tions (‘‘RUDs’’). These unilateral statements have generated considerable
controversy both in the United States and among other treaty parties. We
discuss this issue in greater depth in Chapter 10(B), infra.

Reservations to Human Rights Agreements

In principle, the rules governing reservations apply to human rights
agreements as to treaties generally. However, in its Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, 1951 I.C.J. 15 (May 28) [hereinafter Advisory Opinion],
the International Court of Justice considered whether different standards
should apply to a treaty whose objectives are ‘‘to safeguard the very
existence of certain human groups and TTT to confirm and endorse the most
elementary principles of morality.’’ Id. at 23. The Genocide Convention is
silent on the issue of reservations. A number of countries had nevertheless
filed reservations when ratifying the treaty. The principal question before
the ICJ was whether these reserving states could be considered as parties
to the Convention. The Court reasoned as follows:
It is well established that in its treaty relations a State cannot be
bound without its consent, and that consequently no reservation can
be effective against any State without its agreement thereto. It is also a
generally recognized principle that a multilateral convention is the
result of an agreement freely concluded upon its clauses and that
consequently none of the contracting parties is entitled to frustrate or
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 201

impair, by means of multilateral decisions or particular agreements,

the purpose and raison d’être of the convention. To this principle was
linked the notion of the integrity of the convention as adopted, a
notion which in its traditional concept involved the proposition that no
reservation was valid unless it was accepted by all the contracting
parties without exception, as would have been the case if it had been
stated during the negotiations.
This concept, which is directly inspired by the notion of contract,
is of undisputed value as a principle. However, as regards the Genocide
Convention, it is proper to refer to a variety of circumstances which
would lead to a more flexible application of this principle. Among these
circumstances may be noted the clearly universal character of the
United Nations under whose auspices the Convention was concluded,
and the very wide degree of participation envisaged by Article XI of the
Convention. Extensive participation in conventions of this type has
already given rise to greater flexibility in the international practice
concerning multilateral conventions. More general resort to reserva-
tions, very great allowance made for tacit assent to reservations, the
existence of practices which go so far as to admit that the author of
reservations which have been rejected by certain contracting parties is
nevertheless to be regarded as a party to the convention in relation to
those contracting parties that have accepted the reservations—all these
factors are manifestations of a new need for flexibility in the operation
of multilateral conventions.
It must also be pointed out that although the Genocide Convention
was finally approved unanimously, it is nevertheless the result of a
series of majority votes. The majority principle, while facilitating the
conclusion of multilateral conventions, may also make it necessary for
certain States to make reservations. This observation is confirmed by
the great number of reservations which have been made of recent years
to multilateral conventions.
T T T
[T]he Genocide Convention was TTT intended by the General
Assembly and by the contracting parties to be definitely universal in
scope. It was in fact approved on December 9th, 1948, by a resolution
which was unanimously adopted by fifty-six States.
The objects of such a convention must also be considered. The
Convention was manifestly adopted for a purely humanitarian and
civilizing purpose. It is indeed difficult to imagine a convention that
might have this dual character to a greater degree, since its object on
the one hand is to safeguard the very existence of certain human
groups and on the other to confirm and endorse the most elementary
principles of morality. In such a convention the contracting States do
not have any interests of their own; they merely have, one and all, a
common interest, namely, the accomplishment of those high purposes
which are the raison d’être of the convention. Consequently, in a
convention of this type one cannot speak of individual advantages or
disadvantages to States, or of the maintenance of a perfect contractual
balance between rights and duties. The high ideals which inspired the
202 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

Convention provide, by virtue of the common will of the parties, the

foundation and measure of all its provisions.
T T T
The object and purpose of the Genocide Convention imply that it
was the intention of the General Assembly and of the States which
adopted it that as many States as possible should participate. The
complete exclusion from the Convention of one or more States would
not only restrict the scope of its application, but would detract from
the authority of the moral and humanitarian principles which are its
basis. It is inconceivable that the contracting parties readily contem-
plated that an objection to a minor reservation should produce such a
result. But even less could the contracting parties have intended to
sacrifice the very object of the Convention in favour of a vain desire to
secure as many participants as possible. The object and purpose of the
Convention thus limit both freedom of making reservations and that of
objecting to them. It follows that it is the compatibility of a reservation
with the object and purpose of the Convention that must furnish the
criterion for the attitude of a State in making the reservation on
accession as well as for the appraisal by a State in objecting to the
reservationTTTT
Id. at 23–24.

Notes and Questions

1. The ICJ’s advisory opinion led to a wholesale revision of the rules
governing reservations to multilateral treaties, rules later codified in the
1969 Vienna Convention on the Law of Treaties. For example, the opinion
adopted the ‘‘object and purpose’’ standard to determine the validity of
reservations to treaties that do not contain any provisions concerning
reservations. See Restatement (Third) of the Foreign Relations Law of the
United States § 313 (1987). Several human rights agreements have ex-
pressly adopted the ‘‘object and purpose’’ standard. See, e.g., Convention on
the Elimination of All Forms of Discrimination Against Women (‘‘CE-
DAW’’), art. 28(2) (‘‘A reservation incompatible with the object and pur-
pose of the present Convention shall not be permitted.’’). Reservations to
CEDAW are discussed in Chapter 8(A), infra.
2. Reservations are a common feature of many multilateral human rights
treaties. Is such a permissive approach to reservations desirable? What are
its benefits and costs? See LIESBETH LIJNZAAD, RESERVATIONS TO U.N. HUMAN
RIGHTS TREATIES: RATIFY OR RUIN? (1995); Catherine Redgwell, Universality
or Integrity? Some Reflections on Reservations to General Multilateral
Treaties, 64 BRIT. Y.B. INT’L L. 245 (1993); William A. Schabas, Reservations
to Human Rights Treaties: Time for Innovation and Reform, 32 CAN. Y.B.
INT’L L. 39 (1994); Yogesh Tyagi, The Conflict of Law and Policy on
Reservations to Human Rights Treaties, 71 BRIT. Y.B. INT’L L. 181 (2000).
3. How does one identify a treaty’s object and purpose? The ICJ provides
limited guidance on this issue other than identifying two goals of the
Genocide Convention: (1) that ‘‘as many States as possible’’ should become
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 205

human rights treaties remain unresolved. See M. Fitzmaurice, On the

Protection of Human Rights, the Rome Statute and Reservations to Multi-
lateral Treaties, 10 SINGAPORE Y.B. INT’L L. 133, 141–46 (2006).

Interpretation of Treaties: In General

The principles for interpreting international agreements are set forth
in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.
Similar principles appear in section 325 of the Restatement of Foreign
Relations Law:

Restatement (Third) of the Foreign Relations Law of

the United States
§ 325 (1987).

(1) An international agreement is to be interpreted in good faith in

accordance with the ordinary meaning to be given to its terms in their
context and in the light of its object and purpose.
(2) Any subsequent agreement between the parties regarding the interpre-
tation of the agreement, and subsequent practice between the parties in the
application of the agreement, are to be taken into account in its interpreta-
tion.

Comment:
a. Customary international law of interpretation. Customary interna-
tional law has not developed rules and modes of interpretation having the
definiteness and precision to which this section aspires. Therefore, unless
the Vienna Convention comes into force for the United States, this section
does not strictly govern interpretation by the United States or by courts in
the United States. But it represents generally accepted principles and the
United States has also appeared willing to accept them despite differences
of nuance and emphasis.
T T T
d. Interpretation of different types of agreements. Different types of
agreements may call for different interpretative approaches. Agreements
creating international organizations have a constitutional quality, and are
subject to the observation in McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316, 407, 4 L.Ed. 579 (1819), that ‘‘we must never forget that it is a
constitution that we are expounding.’’ Treaties that lay down rules to be
enforced by the parties through their internal courts or administrative
agencies should be construed so as to achieve uniformity of result despite
differences between national legal systems. Agreements involving a single
transaction between governments, such as a transfer of territory or a grant
of economic assistance should be construed like similar private contracts
between private parties. Different approaches to interpretation have devel-
oped for particular categories of agreements such as extradition treaties,
tax treaties, etc.
206 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

e. Recourse to travaux préparatoires. The Vienna Convention, in Arti-

cle 32, requires the interpreting body to conclude that the ‘‘ordinary
meaning’’ of the text is either obscure or unreasonable before it can look to
‘‘supplementary means.’’ Some interpreting bodies are more willing to
come to that conclusion than othersTTTT Article 32 of the Vienna Conven-
tion reflects reluctance to permit the use of materials constituting the
development and negotiation of an agreement (travaux préparatoires) as a
guide to the interpretation of the agreement. The Convention’s inhospitali-
ty to travaux is not wholly consistent with the attitude of the International
Court of Justice and not at all with that of United States courts.

Interpretation of Treaties: Human Rights Agreements

Should human rights treaties be interpreted differently from other
international agreements? For example, if an ambiguous provision is capa-
ble of more than one interpretation, should the interpretation that provides
more extensive protections to individuals be preferred? The answer to these
questions depends in part on the nature of the obligations contained in
human rights treaties. Most international tribunals and review bodies have
concluded that the unique goals of human rights treaties distinguish them
from other international compacts. The following statement by the Inter–
American Court of Human Rights is representative of this approach:
Modern human rights treaties TTT are not multilateral treaties of the
traditional type concluded to accomplish the reciprocal exchange of
rights for the mutual benefit of the contracting States. Their object
and purpose is the protection of the basic rights of individual human
beings irrespective of their nationality, both against the State of their
nationality and all other contracting States. In concluding these hu-
man rights treaties, the States can be deemed to submit themselves to
a legal order within which they, for the common good, assume various
obligations, not in relation to other States, but towards all individuals
within their jurisdiction.
The Effect of Reservations on the Entry into Force of the American Conven-
tion on Human Rights (Arts. 74 and 75), Advisory Opinion OC–2/82, Inter–
Am. Ct. H.R. (ser. A) No. 2 (1982), para. 29.
The distinctive nature of the obligations in human rights agreements
influences the methods for interpreting the scope and reach of specific
treaty provisions. As two past Presidents of the European Court of Human
Rights (‘‘ECHR’’) have written:
Treaty obligations are in case of doubt and in principle not to be
interpreted in favor of State sovereignty. It is obvious that this
conclusion can have considerable conclusions for human rights conven-
tions: Every effective protection of individual freedoms restricts State
sovereignty, and it is by no means State sovereignty which in case of
doubt has priority. Quite the contrary, the object and purpose of
human rights treaties may often lead to a broader interpretation of
individual rights on one hand and restrictions on State activities on the
other.
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 207

Rudolf Bernhardt, Evolutive Treaty Interpretation. Especially of the Europe-

an Convention on Human Rights, 42 GERMAN Y.B. INT’L L. 11, 14 (1999).
Our Court has stated many times that the Convention, being a living
instrument, is intended to guarantee rights that are not theoretical or
illusory, but practical and effective. This could be interpreted as
explaining not only an evolutive interpretation of the Convention
guarantees, but also as allowing deviations from general international
law.
Luzius Wildhaber, The European Convention on Human Rights and Inter-
national Law, 56 INT’L & COMP. L.Q. 217, 223 (2007); see also id. at 229
(stating that the ECHR’s interpretations of the rights and freedoms in the
European Convention ‘‘go beyond the consent- and sovereignty-oriented
rules of general rules of general international law’’).
What are the limits of this evolutive approach to treaty interpretation?
For example, would it be appropriate for an international tribunal to
recognize a human right that the drafters had expressly omitted from a
treaty, or a right that emerged years after the treaty was negotiated? How
might states parties respond to such a ruling? See Laurence R. Helfer, Why
States Create International Tribunals: A Theory of Constrained Indepen-
dence, in INTERNATIONAL CONFLICT RESOLUTION 255 (Stefan Voigt et al. eds.,
2006) (identifying the mechanisms that have states adopted in response to
judicial overreaching by international tribunals).

Derogations from Human Rights Agreements

Three treaties that protect civil and political rights—the European
Convention on Human Rights, the American Convention on Human Rights,
and the International Covenant on Civil and Political Rights—authorize
states parties to suspend certain rights and freedoms during times of
national emergency. For example, Article 4.1 of the ICCPR provides:
In time of public emergency which threatens the life of the nation and
the existence of which is officially proclaimed, the States Parties to the
present Covenant may take measures derogating from their obligations
under the present Covenant to the extent strictly required by the
exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and
do not involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin.
There are several important limitations on a state’s ability to derogate
from its treaty obligations. For example, ICCPR Article 4 applies only to
proclaimed public emergencies ‘‘which threaten the life of the nation,’’ not
merely the life of a particular system of government, a particular regime, or
a particular political party. Such threats may have an external source, for
example aggression by another state. But public emergencies of this magni-
tude may also have internal causes, such as a major natural disaster or
widespread social unrest.
Article 4.1 also allows derogation only ‘‘to the extent strictly required
by the exigencies of the situation.’’ As an initial matter, the state deter-
mines whether a suspension of rights meets this exacting standard. But
208 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

derogation also involves the interpretation and application of a treaty

governed by international law. As a result, a state’s decision to derogate is
subject to scrutiny by other states parties and to review by an appropriate
international body, such as a tribunal or treaty body. To facilitate this
review, the derogating country must notify other states parties of its
decision to derogate, as well as of the justification for and scope of any
measures it adopts as a result of the national emergency.
Human rights treaties also bar states from suspending certain rights
and freedoms. For example, ICCPR Article 4.2 lists several articles of the
Covenant that are not subject to derogation even in an emergency. This
provision protects rights and freedoms that the ICCPR’s drafters consid-
ered to be fundamental, such as the ban on racial, religious, and other
forms of discrimination (Article 4(1)); the prohibitions of genocide and the
limitations on capital punishment (Article 6); the ban on torture or other
cruel, inhuman or degrading treatment or punishment (Article 7) or slavery
(Article 8); or the right to personhood (Article 16). Many of these provisions
have attained the status of jus cogens. But Article 4.2 also specifies as non-
derogable other rights which do not seem to be relevant to public emergen-
cies, such as the right not to be imprisoned for debt (Article 11), the right
to freedom of thought, conscience and religion, (Article 18), and the
prohibition of ex post facto laws (Article 15).
In a General Comment published in the summer of 2001, the Human
Rights Committee—the body of human rights experts that reviews imple-
mentation of the Covenant by states parties—elaborated upon the limita-
tions that the ICCPR imposes on derogations. The General Comment
included the following statement concerning Article 4.2 of the Covenant:
The fact that some of the provisions of the Covenant have been listed
in article 4 (paragraph 2), as not being subject to derogation does not
mean that other articles in the Covenant may be subjected to deroga-
tions at will, even where a threat to the life of the nation exists. The
legal obligation to narrow down all derogations to those strictly re-
quired by the exigencies of the situation establishes both for States
parties and for the Committee a duty to conduct a careful analysis
under each article of the Covenant based on an objective assessment of
the actual situation.
U.N. Human Rights Comm., General Comment No. 29—States of Emergen-
cy (Article 4), ¶ 6, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001). For a discus-
sion of the Human Rights Committee’s view that non-derogable rights also
may not be subject to reservation and that a reservation to such rights may
be inconsistent with the object and purpose of the ICCPR, see General
Comment 24 discussed in Chapter 10(B), infra.

Notes and Questions

1. President George W. Bush declared a national emergency in the United
States a few days after the September 11th attacks. See Proclamation No.
7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001). The United States did not,
however, file a notice of derogation from its obligations under the ICCPR.
See Joan Fitzpatrick, Jurisdiction of Military Commissions and the Ambig-
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 209

uous War on Terrorism, 96 AM. J. INT’L L. 345, 350–51 (2002). In contrast,

the United Kingdom submitted a detailed letter to the Secretary General
describing the security threat of future terrorist attacks and the scope and
temporal limitations of its derogation from Article 9 of the ICCPR concern-
ing arrest and detention without trial. See Derogation Notification, Dec. 18,
2001, http://www.unhchr.ch/html/menu3/b/treaty5 asp.htm (describing pro-
visions of the Anti-terrorism, Crime and Security Act 2001 that grant ‘‘an
extended power to arrest and detain a foreign national which will apply
where it is intended to remove or deport the person from the United
Kingdom but where removal or deportation is not for the time being
possible’’).
2. Did the terrorist attacks of September 11, 2001 create a ‘‘public
emergency’’ in the United States within the meaning of Article 4.1 of the
Covenant? If so, why might the United States have refrained from exercis-
ing its power to derogate from the ICCPR? Why might the United Kingdom
have followed a different course of action?
3. Assume that a state party provides evidence that it faces a long-term
risk of future terrorist attacks. Cf. Boumediene v. Bush, 128 S. Ct. 2229,
2274 (2008) (‘‘The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate.’’). How should the Human Rights
Committee respond to the state’s argument that such a risk justifies an
indefinite derogation from certain Covenant rights and freedoms?
4. Many of the national security measures adopted by the United States
following the attacks of September 11th were applied to foreign nationals
but not to American citizens. Does ICCPR Article 4.1 prohibit a derogation
that applies only to foreigners? Does General Comment No. 29? Cf. A. and
Others v. United Kingdom, App. No. 3455/05, 2009– Eur. Ct. H.R. paras.
181, 190 (Grand Chamber) (concluding, by a unanimous vote, that the
United Kingdom’s derogation from the arrest and detention provisions of
the European Convention on Human Rights following the terrorist attacks
of September 11, 2001 responded to ‘‘a public emergency threatening the
life of the nation,’’ but that ‘‘the derogating measures were disproportion-
ate in that they discriminated unjustifiably between nationals and non-
nationals’’).
5. Are you persuaded by the Human Rights Committee’s interpretation of
Article 4.2 in General Comment No. 29, quoted above? Does the Committee
believe all provisions of the ICCPR—including those listed in Article 4.2—
are non-derogable? If not, how do you interpret the Committee’s analysis?
6. For additional analysis of derogations from human rights agreements
in times of emergency, see JOAN FITZPATRICK, HUMAN RIGHTS IN CRISIS: THE
INTERNATIONAL SYSTEM FOR PROTECTING RIGHTS DURING STATES OF EMERGENCY
(1994); OREN GROSS ET AL., LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN
THEORY AND PRACTICE (2006); Edel Hughes, Entrenched Emergencies and the
‘‘War On Terror’’: Time to Reform the Derogation Procedure in Internation-
al Law?, 20 N.Y. INT’L L. REV. 1 (2007); Dominic McGoldrick, The Interface
Between Public Emergency Powers and International Law, 2 INT’L J. CONST.
L. 380 (2004).
210 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

Withdrawal from Human Rights Agreements

Can a state unilaterally withdraw from an international agreement
that it previously ratified, thereby terminating its obligations pursuant to
the treaty? The validity of such actions, generally referred to in interna-
tional law as denunciations, is usually determined by the terms of the
treaty itself. See Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579,
1596–98 (2005). Most human rights treaties permit states to withdraw after
a fixed period following a formal notice of denunciation. For example,
Article 21 of the Convention on the Elimination of all Forms of Racial
Discrimination provides that ‘‘[a] State Party may denounce this Conven-
tion by written notification to the Secretary–General of the United Nations.
Denunciation shall take effect one year after the date of receipt of the
notification by the Secretary General.’’
Denunciations of human rights agreements are rare but not unprece-
dented. For example, in the late 1990s Guyana, Jamaica, and Trinidad and
Tobago denounced the First Optional Protocol to the ICCPR, and Trinidad
and Tobago also withdrew from the American Convention on Human
Rights. See Laurence R. Helfer, Overlegalizing Human Rights: Internation-
al Relations Theory and the Commonwealth Caribbean Backlash Against
Human Rights Regimes, 102 COLUM. L. REV. 1832 (2002). Several states and
nongovernmental organizations deplored the denunciations and urged the
governments to reconsider their actions. There was no assertion, however,
that the denunciations were unlawful or that the states remained parties to
the treaties. For additional analysis of the Caribbean backlash, see Chapter
6(B), infra, on international relations theories of compliance with human
rights agreements.
What if a treaty is silent as to denunciation or withdrawal? Several
major human rights agreements—including the ICCPR, ICESCR, and CE-
DAW do not contain denunciation or withdrawal clauses. In 1997, North
Korea purported to denounce the ICCPR following criticism of its human
rights practices. See Elizabeth Evatt, Democratic People’s Republic of Korea
and the ICCPR: Denunciation as an Exercise of the Right of Self–Defence?,
5 AUSTL. J. HUM. RTS. 215, 215–17 (1999). In response, the Human Rights
Committee adopted General Comment No. 26, U.N. Doc. CCPR/
C/21/Rev.1/Add.9 (1997), in which it concluded that the ICCPR does not
permit denunciation or withdrawal.
The Committee analyzed the issue under the Vienna Convention on
the Law of Treaties. Article 56 of the Vienna Convention provides that, in
the absence of an express provision concerning the practice, a treaty does
not permit denunciation or withdrawal ‘‘unless (a) it is established that the
parties intended to admit the possibility of denunciation or withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of
the treaty.’’ Applying this standard, the Committee observed that the
absence of a denunciation provision in the ICCPR was not an oversight but
rather reflected a deliberate decision by the treaty’s drafters. It also
reasoned that the nature of the Covenant implies that there is no right to
withdraw. The treaty codifies universal human rights that belong to
individuals, not to states parties; no action by the state, including a change
of government or disintegration, can divest them of those rights.
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 211

Notes and Questions

1. What types of events or circumstances might cause a state unilaterally
to withdraw from a human rights treaty that it had previously ratified?
2. Why might states have included denunciation or withdrawal provisions
in some human rights agreements but not others?
3. Are you persuaded by the Human Rights Committee’s reasoning in
General Comment No. 26 that states parties may not denounce the ICCPR?
Can you foresee any negative consequences of such a decision?
4. Assume that a state validly withdraws from a human rights treaty that
contains a denunciation clause. Is that state also no longer bound by a rule
of customary international law that incorporates the same human rights
obligations?

2. RESPONSIBILITY UNDER HUMAN RIGHTS TREATIES

State Responsibility
Like all international law, the international law of human rights is
generally made by states and generally governs the behavior of states.
Human rights treaties are agreements by which states parties assume
obligations to other states parties. In human rights treaties, however, these
obligations are undertakings to respect the rights of individuals, generally
the rights of individuals subject to the promisor state’s jurisdiction, and to
provide them remedies for violations. Human rights agreements generally
also include undertakings by states parties to submit to international
adjudication or monitoring mechanisms, for example, to submit to the
jurisdiction of a regional human rights tribunal or to a ‘‘treaty body’’ such
as the Committee Against Torture established by the United Nations
Convention Against Torture.
Human rights treaties and the customary law of human rights create
obligations for states, and states are responsible for carrying out those
obligations. If a state fails to respect or to ensure the rights protected in a
covenant or convention to which it is party, or fails to provide remedies
that the treaty requires, it is responsible for that violation under interna-
tional law. A state’s international responsibility is similarly engaged if, as a
matter of state policy, it violates the customary law of human rights. Where
a state is obligated, either by treaty or customary law, to respect the
human rights of an individual, the state is responsible for violations
committed by any of its agencies, officials or others acting ‘‘under color of
law.’’ In a federal system, the state is responsible as well for acts or
omissions of its constituent governmental units, their officials, and others
acting under color of their laws.
Under both international treaties and customary law, a state is respon-
sible for violations of the rights of persons ‘‘subject to its jurisdiction.’’ Are
individuals subject to a state’s jurisdiction if the state acts against them
outside its territory? International tribunals and national courts have
interpreted this language in different and sometimes inconsistent ways. See
EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES (B. Fons Coomans
& Menno Kamminga eds., 2004). The issue of extraterritoriality has be-
212 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

come increasingly relevant to the United States’ efforts to combat transna-

tional terrorism and to its treatment of refugees. (The first issue is
discussed in depth in the introductory case study in Chapter 1; the second
is the subject of Chapter 14, infra.)
In practical effect, a state’s responsibility to respect and ensure the
rights of persons subject to its jurisdiction, and to provide adequate
remedies for violations, runs to those whose rights it has violated. See, for
example, the Optional Protocol to the ICCPR, and provisions in regional
conventions for individual complaints to human rights tribunals and review
bodies. As a formal matter, however, international obligations run to the
other states parties to the covenant or the convention, with the individual
concerned, in effect, a third party beneficiary. Thus, for example, under
Article 41 of the ICCPR, a state may complain to the Human Rights
Committee of a violation of individual rights by another state. In addition,
some human rights conventions authorize a state party to file a claim
before the ICJ concerning such violations. See, e.g., Convention Against
Genocide, art. IX; Convention Relating to the Status of Refugees, art. 38.
Relatedly, human rights obligations under customary international law are
considered obligations erga omnes—that is, to all states—and, in principle,
any other state may pursue remedies against violating nations. We consider
these different approaches to state responsibility in the discussion of
implementation issues in Chapter 7, infra.
In 2001, the International Law Commission adopted the Articles on
Responsibility of States for Internationally Wrongful Acts. JAMES CRAWFORD,
THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY:
INTRODUCTION, TEXT AND COMMENTARIES (2002). The Articles, which were the
culmination of more than forty years of work by the Commission, provide a
comprehensive compendium of the principles of state responsibility and
represent a significant effort to synthesize, codify, and progressively devel-
op this important area of international law. The Articles are likely to have
significant influence on state practice, international decisions, and the
writings of commentators. See Daniel Bodansky & John R. Crook, The
ILC’s State Responsibility Articles: Introduction and Overview, 96 AM. J.
INT’L L. 773–91 (2002).

Responsibility of Individuals and Private Actors

Treaties ordinarily create obligations for states, not for private per-
sons. But nothing prevents states, by agreement, from establishing norms
to govern the behavior of natural or juridical persons. See, e.g., Convention
Against Genocide, art. IV (‘‘Persons committing genocide TTT shall be
punished, whether they are constitutionally responsible rulers, public offi-
cials or private individuals.’’). By treaty (or by customary law) states may
impose obligations to respect human rights on private persons or entities,
and such individuals or entities may then be held directly responsible for
human rights violations. See generally ANDREW CLAPHAM, HUMAN RIGHTS
OBLIGATIONS OF NON–STATE ACTORS (2006); ANDREW CLAPHAM, HUMAN RIGHTS IN
THE PRIVATE SPHERE (1993); John H. Knox, Horizontal Human Rights Law,
102 AM. J. INT’L L. 1 (2008). Compare the development of ‘‘international
crimes’’ in the Nuremberg Charter and the growth of international crimi-
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 213

nal tribunals with jurisdiction over crimes against humanity, genocide, and
war crimes. See Chapter 7(C), infra.
The issue of whether private persons or entities can be held directly
responsible for human rights violations is separate from whether states are
responsible for violations committed by those persons or entities. Under
some treaties, the state is required not only to ‘‘respect’’ the rights of
individuals but also to ‘‘ensure’’ and ‘‘protect’’ them. This dual obligation
has been interpreted to mean that states parties must see to it that the
human rights of its inhabitants are not violated by others, including by
private parties subject to the state’s jurisdiction or authority. See, e.g., A. v.
United Kingdom, App. No. 25599/94, 1998–IV Eur. Ct. H.R. (ruling that
states have a duty to protect children against physical abuse by parents and
step-parents); U.N. Comm. on Economic, Social & Cultural Rights, General
Comment No. 14, The Right to the Highest Attainable Standard of Health,
U.N. Doc. E/C.12/2000/4 (2000), para. 35 (ruling that the obligation to
protect the right to health requires states parties, inter alia, ‘‘to prevent
third parties from coercing women to undergo TTT female genital mutila-
tion’’); U.N. Human Rights Comm., General Comment No. 31, Nature of the
General Legal Obligation Imposed on States Parties to the Covenant, U.N.
Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 8 (stating that the obligations
‘‘to ensure’’ the rights protected in the ICCPR ‘‘will only be fully dis-
charged if individuals are protected by the State, not just against violations
of Covenant rights by its agents, but also against acts committed by private
persons or entities’’).

Globalization and Corporate Responsibility to Respect

Human Rights
Recent transformations in the world’s economic, political, and commu-
nications structures have had important consequences for human rights.
The sweep of privatization, the dominance of globalized capital and finan-
cial markets, and the instant communications of the Internet have steadily
enhanced the influence of large multinational companies and reduced the
significance of state sovereignty and territorial boundaries. Many large
companies determine policy and take actions independently of govern-
ments, or in complicity with governments and international financial
institutions, such as the World Bank, the International Monetary Fund.
These corporate policies and actions affect the living conditions of millions
of human beings. Large development programs sometimes create massive
population relocations or environmental degradation. Such programs have
also engendered oppressive police and military actions by governments that
benefit multinational companies, sometimes with their acquiescence, other
times with their overt cooperation.
In principle, several countries have the authority to regulate the
policies and activities of multinational companies—the state of nationality
of the parent corporation, the state of its principal headquarters, and the
states in which its activities take place. In practice, however, states are
sometimes unwilling or unable to regulate effectively the activities of these
multinational companies, let alone to ensure that their officers and employ-
ees respect human rights of individuals and groups.
214 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

As noted above, international human rights law has principally con-

cerned itself with the activities of states and governments, not with the
behavior of private actors. However, the increasing pervasive activities of
multinational corporations, together with the inadequacies of traditional
public law regulation of their activities, has generated several initiatives
that suggests the beginnings of a movement in that direction.
First, some multinational corporations have adopted voluntary ‘‘codes
of conduct’’ to police their own activities. One of the earliest examples was
the Sullivan Principles for multinational corporations conducting business
in apartheid South Africa. The number of corporate codes including human
rights issues has increased rapidly over the past decade. See Sean D.
Murphy, Taking Multinational Corporate Codes of Conduct to the Next
Level, 43 COLUM. J. TRANSNAT’L L. 389 (2005); Nancy L. Mensch, Note,
Codes, Lawsuits or International Law: How Should the Multinational
Corporation be Regulated with Respect to Human Rights?, 14 U. MIAMI INT’L
& COMP. L. REV. 243 (2006).
Second, pressure from non-governmental organizations, shareholders,
consumers, and some governments led the U.N. human rights system to
turn its attention to corporate responsibilities relating to human rights. In
2003, the Sub–Commission on the Promotion and Protection of Human
Rights, a body of experts whose activities are discussed in Chapter 7(A),
infra, published a document analyzing the human rights responsibilities of
corporations and other business entities. See Sub–Comm’n on the Pro-
motion & Protection of Human Rights, Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with Regard to
Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.1 (2003). In 2005, the
U.N. Secretary General appointed a special representative to study these
issues. In April 2008, the special representative published a report contain-
ing ‘‘a conceptual and policy framework to anchor the business and human
rights debate, and to help guide all relevant actors. The framework com-
prises three core principles: the State duty to protect against human rights
abuses by third parties, including business; the corporate responsibility to
respect human rights; and the need for more effective access to remedies.’’
Special Representative of the Secretary–General on the Issue of Human
Rights and Transnational Corporations and Other Business Enterprises,
Protect, Respect and Remedy: A Framework for Business and Human
Rights, U.N. Doc. A/HRC/8/5 (Apr. 7, 2008). A more detailed discussion of
these materials appears in Chapter 9, infra.

C. THE PRINCIPAL INTERNATIONAL HUMAN RIGHTS

AGREEMENTS AND INSTRUMENTS
1. THE U.N. CHARTER AS HUMAN RIGHTS LAW
The United Nations Charter, a treaty to which 192 states (virtually
every nation now in existence) are parties, declares it to be a purpose of the
United Nations ‘‘[t]o achieve international co-operation TTT in promoting
and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language, or religion.’’ U.N.
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 215

Charter art. 1. Under Article 56, ‘‘[a]ll Members pledge themselves to take
joint and separate action in cooperation with the Organization for the
achievement of the purposes’’ of the United Nations, purposes that include
promoting ‘‘universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language
or religion.’’ Id. art. 55.
The Charter does not define human rights, and at one time there was
considerable debate as to whether the above articles created a legal obli-
gation for states not to commit gross violations of widely-accepted human
rights. See generally Thomas Buergenthal, The Evolving International
Human Rights System, 100 AM. J. INT’L L. 783, 785–87 (2006). With the
elaboration and widespread acceptance of numerous multilateral human
rights treaties, see Section (D), infra, and with the increasing activity of
human rights bodies operating under the auspices of the Charter, see
Chapter 7, infra, there is less need to determine the precise scope of the
Charter’s human rights standards. However, for a state that is not a party
to a relevant covenant or convention, the Charter remains an additional
source of legal obligation. During the 1970s, for example, the U.N. General
Assembly declared the practice of apartheid in South Africa to be a
violation of the Charter’s human rights principles. See G.A. Res. 32/42, 32
U.N. GAOR at 498, U.N. Doc. A/32/L.36 & Add. 1 (1977).

2. ‘‘THE INTERNATIONAL BILL OF RIGHTS’’

There is no single document entitled the ‘‘International Bill of Rights,’’
but that label is now commonly bestowed upon three instruments taken
together—the Universal Declaration of Human Rights (‘‘UDHR’’), the
International Covenant on Civil and Political Rights (‘‘ICCPR’’), and the
International Covenant on Economic, Social, and Cultural Rights
(‘‘ICESCR’’).
Toward the end of the Second World War, several smaller states and
non-governmental organizations proposed that an International Bill of
Rights be made a part of, or appended to, the U.N. Charter. Although the
Charter did not include such a document, the new U.N. Human Rights
Commission considered drafting a Bill of Rights when it began its work in
1946. The members of the Commission quickly concluded, however, that
such an exercise would be an extended undertaking and that it would be
preferable and more expeditious to produce a declaration of rights while
proceeding simultaneously to prepare a legally binding international agree-
ment.
The U.N. General Assembly adopted the UDHR on December 10, 1948.
The ICCPR and ICESCR took a further eighteen years to complete (in
1966), and another ten years to come into effect (in 1976). Ratification of
the two Covenants proceeded slowly during the 1970s and 1980s, but
accelerated following the end of the Cold War. As of January 2009, 164
states were parties to the ICCPR and 160 states were parties to the
ICESCR. The United States ratified the ICCPR in 1992 subject to a
package of reservations, understandings, and declarations. See Chapter
10(B), infra. The United States signed the ICESCR in 1977 but has not
ratified it.
216 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

a. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The UDHR is the foundational international instrument of the human
rights movement. It is widely viewed as authoritative, including by states
that came into existence in the years since its adoption in 1948. There has
been no serious suggestion that the Declaration be reexamined or amended,
despite the fact that the world has changed significantly during the more
than six decades of its existence. Among the UDHR’s greatest contributions
is its influence on the development of constitutionalism and its reference or
incorporation in numerous constitutions adopted in the second half of the
twentieth century. See Tom Ginsburg, Svitlana Chernykh and Zachary
Elkins, Commitment and Diffusion: How and Why National Constitutions
Incorporate International Law, 2008 U. ILL. L. REV. 201, 208 (comprehen-
sively surveying national constitutions and finding that sixty-nine constitu-
tions mention the UDHR and twenty-four constitutions expressly incorpo-
rate its provisions).
The content of the UDHR is a remarkable synthesis of political-civil
and economic-social rights, with equality and freedom from discrimination
as major themes. Included in the former category are the rights to life,
liberty, and security of person, to fair criminal process, to freedom of
conscience, thought, expression, association, and privacy, to seek and enjoy
asylum, to leave one’s country and return to it, to marriage and family, and
to property. The UDHR also declares the will of the people to be the basis
of the authority of government, and calls for universal suffrage and bona
fide elections. Its social and economic provisions include the right to work
and to leisure, to health care, and to education. The Declaration does not
expressly distinguish between civil and political rights and economic and
social rights. But states recognized from its inception that the two catego-
ries of rights may have different theoretical justifications, and that each
may require different normative elaboration, different types of legal obli-
gations, and different remedies for their violation. We explore these differ-
ences briefly below and in more detail in Chapter 13, infra, on economic,
social, and cultural rights.
Notwithstanding its illustrious pedigree, the formal status of the
UDHR in international law remains somewhat unsettled. The General
Assembly adopted the UDHR as a nonbinding statement of principles
(albeit one that some commentators viewed as an elaboration of the
inchoate human rights obligations in the Charter). As such, the Declaration
was not eligible for ratification by U.N. member states. Nevertheless, as
national executives, legislatures, and courts referenced the UDHR with
increasing frequency, a consensus emerged that at least some of its provi-
sions had become binding as a matter of customary international law.
Given the large areas of overlap between the Declaration and other human
rights treaties, disputes over its legal status arise only infrequently. But the
conclusion that a provision of the UDHR has achieved the status of
customary law would, for example, be important for states that have not
ratified the ICCPR or the ICESCR or have done so with broad reservations.
Following the adoption of the UDHR in 1948, the Human Rights
Commission began the task of elaborating a legally binding agreement that
contained, in a single instrument, all of the rights that the Declaration
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 217

proclaimed. However, Western states insisted upon bifurcating the draft

treaty, which eventually resulted in the 1966 adoption of two separate
covenants—the ICCPR and the ICESCR. Notwithstanding the formal sepa-
ration of the two treaties and categories of rights they contain, subsequent
U.N. resolutions have repeatedly reaffirmed the equal value, indivisibility,
and interdependence of both categories of rights. See, e.g., Vienna Declara-
tion and Programme of Action, World Conference on Human Rights, U.N.
Doc. A/Conf. 157/23 (July 12, 1993).

b. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS (‘‘ICCPR’’)
The core operative provisions of the ICCPR are contained in Article 2.
Article 2.1 provides that ‘‘[e]ach State Party to the present covenant
undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present Cove-
nantTTTT’’ Article 2.2 further requires each state party to ‘‘to take the
necessary steps TTT to adopt such legislative or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.’’
And Article 2.3 specifies ‘‘that any person whose rights or freedoms as
herein recognized are violated shall have an effective remedy,’’ which shall
be ‘‘determined by competent judicial, administrative or legislative authori-
tiesTTTT’’ In addition, the ICCPR establishes international mechanisms to
monitor the implementation of the treaty by states parties. We discuss
these implementation mechanisms in Chapter 7(A), infra.
The ‘‘rights recognized’’ in the ICCPR include the civil and political
rights in Articles 1–21 of the UDHR, generally with only minor differ-
ences.* Civil and political rights are often described as negative liberties.
They are freedoms and immunities that a state can respect by abstention,
i.e., by leaving the individual alone. In fact, to describe all civil and political
rights as negative is misleading. Several of such rights apply in the criminal
process, by which a state may legitimately take liberty and property (or
even life) in punishment. But in those cases the state is required not
merely to leave the individual alone but ‘‘positively’’ to organize its
institutions and laws to assure against arbitrary detention, and to provide
due process, fair trial, and humane punishment. Moreover, the obligation
to ‘‘ensure’’ rights has been interpreted as requiring the state to take steps
to protect them against private infringement.
Several civil and political rights protected in the ICCPR are expressed
in categorical terms. For example, Article 8.1 provides that ‘‘[n]o one shall
be held in slavery; slavery and the slave-trade in all their forms shall be
prohibited.’’ However, other civil and political liberties in the Covenant
(and in other human rights treaties and national constitutions) are not
absolute. One person’s right may conflict with another’s, and one right may

* One important right included in the scope of a right to property in the ICCPR.
Declaration but not in the ICCPR is the right Property rights provisions were, however, in-
to own and not to be arbitrarily deprived of cluded in the European, American, and Afri-
property (UDHR Article 17). Ideological con- can human rights instruments. For a more
flicts concerning the expropriation of foreign detailed discussion of property rights, see
investment prevented agreement on the Chapter 13, infra.
218 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

be limited by another right; in addition, individual rights may impinge on

other societal values or public interests.
Rights limitations in the ICCPR generally follow a common pattern.
The first sentence or paragraph of an article describes the protected right
or freedom, and the second sentence or paragraph enumerates the limita-
tions that states may permissibly impose on that right or freedom. For
example, the Covenant describes the right of assembly in the following
terms:
The right of peaceful assembly shall be recognized. No restrictions may
be placed on the exercise of this right other than those imposed in
conformity with the law and which are necessary in a democratic society
in the interests of national security or public safety, public order (ordre
public), the protection of public health or morals or the protection of
the rights and freedoms of others.
ICCPR art. 21 (emphasis added).
The words emphasized above reveal that limitations on rights are
themselves restricted, and that the articulated purposes of limitations are
to be narrowly construed. Some of the highlighted terms have historic
meanings in national constitutional jurisprudence. For example, the Cove-
nant’s drafters emphasized the special character that ‘‘ordre public’’ had in
French jurisprudence, a meaning that was not fully captured by the
English words ‘‘public order.’’ See Alexandre C. Kiss, Permissible Limita-
tions on Rights, in THE INTERNATIONAL BILL OF RIGHTS (Louis Henkin ed.,
1981). Over time, however, human rights tribunals and treaty bodies have
developed a rich and extensive international jurisprudence that elaborates
and refines the meaning of each of these key phases.
Limitations similar to those applicable to the right of assembly are
found in the following ICCPR provisions: Article 12.3 (limitations on
freedom of movement and residence and the right to leave a country and to
return to one’s own country); Article 18.3 (limitations on freedom of
thought, conscience and religion); Article 19.3 (limitations on freedom of
expression); and Article 22.2 (limitations on freedom of association). For-
mer ICJ President Rosalyn Higgins has labeled these limitations provisions
as ‘‘clawback clauses’’ because they permit states parties to restrict protect-
ed rights and freedoms for a specified list of public reasons. Rosalyn
Higgins, Derogations Under Human Rights Treaties, 48 BRIT. Y.B. INT’L L.
281, 281 (1976–77).
Finally, it is important to distinguish limitations on ICCPR rights and
freedoms from ‘‘derogations’’ in times of national emergency (see pp. 207–
09). Unlike derogations, limitations are not restricted to emergencies but
are permitted at all times under a state party’s police power, for such
reasons as national security, public order, public health or morals or the
rights and freedoms of others.

c. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND

CULTURAL RIGHTS (‘‘ICESCR’’)
The bifurcation of the Universal Declaration of Human Rights into two
legally binding covenants—one addressing civil and political rights and the
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 219

other concerning economic, social and cultural rights—highlighted a num-

ber of differences between the two categories of rights.* These include the
nature and scope of the obligations assumed, the permissible limitations on
rights that may be imposed in the public interest, and the procedures for
monitoring compliance and implementation by state parties. For a discus-
sion of implementation issues, see Chapter 13, infra.
The adoption of a legally binding international agreement to protect
economic, social and cultural rights did little to resolve competing concep-
tions of how to structure the relationship between state values and human
values. Although the drafters intended the ICESCR to be acceptable to
socialist states, developing nations, and industrialized ‘‘free-market’’ coun-
tries, the differences between the two Covenants have been often character-
ized as reflecting political and ideological divisions between these groups of
countries. In addition, some wealthy nations resisted what many poorer
states demanded—commitments by the former to provide economic assis-
tance to the latter to help satisfy economic and social needs of their
inhabitants.
Compromises concerning these areas of disagreement are reflected in
the distinctive phrasing of the ICESCR’s text. Consider the obligations of
states parties in Article 2:
Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of
the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures.
In comparing Article 2 of the ICESCR to the quoted provisions of
Article 2 of the ICCPR on p. 217 above, several differences are immediately
apparent. Note in particular the phrases ‘‘to take steps’’, ‘‘through interna-
tional assistance and cooperation’’, ‘‘to the maximum of its available
resources’’ and ‘‘to achieving progressively’’ in Article 2 of the ICESCR.
Similar language appears in the treaty’s rights provisions, which
include the right to work (art. 6); to social security (art. 9); to an adequate
standard of living, including food, clothing and housing (art. 11); to the
highest attainable standard of health (art. 12); the right to education (art.
13); and the right to take part in cultural life (art. 15). For example, Article
11 ‘‘recognize[s] the right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing and housing, and
to the continuous improvement of living conditions. The States Parties will
take appropriate steps to ensure the realization of this rightTTTT’’
According to many commentators, these phrases signal that the rights
protected in the ICESCR are ‘‘programmatic and promotional’’ in nature,
to be achieved incrementally over time. IAN BROWNLIE, PRINCIPLES OF PUBLIC

* In some instances, the rationale for al- civil right, and the right to join a trade union
locating a right to one category over another (ICESCR art. 8) may also be a component of
is not always obvious. In others, a right spans the right of association protected by ICCPR
both categories. For example, the right to Article 22.
work (ICESCR art. 6) might be treated as a
220 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

INTERNATIONAL LAW 576–77 (5th ed. 1998). In addition, what might be

described as the ‘‘softness’’ of the undertakings in the ICESCR made it
unnecessary for the drafters to add a derogations provision to the treaty or
to include limitations clauses to the same extent as in the ICCPR.
It is nevertheless undisputed that the ICESCR imposes legally binding
obligations on states parties, and the Committee on Economic Social and
Cultural Rights—the counterpart to the Human Rights Committee in the
ICCPR—has developed an extensive jurisprudence that interprets and
extends ICESCR rights and freedoms in novel and important ways. Most
importantly, the ICESCR Committee has developed a tripartite framework
of obligations for all states parties—the obligation to respect, the obligation
to protect, and the obligation to fulfill.
In the Committee’s distinctive taxonomy, ‘‘obligations to respect’’
entail responsibilities of direct application and effect, ‘‘obligations to
protect’’ generally require states to prevent interference by third
parties (particularly nonstate actors) in the enjoyment of the right in
question, and ‘‘obligations to fulfil’’ involve the duty of states parties
to adopt appropriate legislative, administrative, budgetary, judicial,
promotional, and other measures aimed at ‘‘the full realization’’ of the
rights in question.
Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social,
and Cultural Rights: Should There be an International Complaints Mecha-
nism to Adjudicate the Rights to Food, Water, Housing, and Health?, 98 AM.
J. INT’L L. 462, 491 (2004). Chapter 13, infra, addresses the interpretation
of the ICESCR in greater detail.

D. SELECTED UNITED NATIONS HUMAN RIGHTS

AGREEMENTS
Beginning with the Genocide Convention in 1948, the United Nations
has sponsored a growing number of conventions on specific human rights
issues. These subject-specific conventions elaborate and expand upon the
more general obligations in the two covenants. Each convention also
establishes a ‘‘treaty body’’ of international experts to monitor the imple-
mentation of protected rights and freedoms by states parties. Members of
the United Nations have adhered to these specialized treaties in increasing
numbers, although sometimes with broad reservations. (When the United
States has ratified these conventions, it has always done so subject to a
package of reservations, understandings, and declarations.) Also notewor-
thy are conventions adopted under the auspices of the International Labor
Organization (‘‘ILO’’), several of which protect the human rights of work-
ers.
We provide a brief overview of several of these subject-specific treaties
below, deferring a more detailed analysis to other chapters of the casebook.

The Genocide Convention

The Convention on the Prevention and Punishment of the Crime of
Genocide was the first post-war human rights agreement. It was adopted in
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 239

4. Countries in Asia have not emulated Europe, the Americas, and Africa
in establishing a regional human rights system. In November 2007, howev-
er, the Association of Southeast Asian Nations (‘‘ASEAN’’) adopted a new
Charter, Article 14 of which provides as follows:
1. In conformity with the purposes of principles of the ASEAN
Charter relating to the promotion and protection of human rights and
fundamental freedoms, ASEAN shall establish an ASEAN human
rights body.
2. This ASEAN human rights body shall operate in accordance with
the terms of reference to be determined by the ASEAN Foreign
Ministers Meeting.
Charter of the Association of Southeast Asian Nations art. 14, Nov. 20,
2007, http://www.aseansec.org/AC.htm. As of January 2009, ASEAN had
yet to establish or define the authority of this new regional human rights
body.
5. Consider the following negative assessment of regional human rights
systems:
With the adoption of the Universal Declaration of Human Rights TTT,
the international community formally committed itself to worldwide
protection of human rights. Since then, regional human rights arrange-
ments have been developed, taking into account the specific social and
cultural characteristics of each region of the world. While the interna-
tional community has applauded the successes of these regional sys-
tems, such efforts are actually a step in the wrong direction. By
decentralizing human rights enforcement away from the United Na-
tions (UN) system, human rights, once heralded as universal values
that cannot vary from nation to nation or from region to region, are
now becoming increasingly region-specific. While cultural differences
must be kept in mind when universal human rights standards are
applied and violators are prosecuted, the expanding gulf between those
rights espoused by one state and those espoused by another will only
lead to the marginalization of rights.
Melissa Robbins, Comment, Powerful States, Customary Law and the
Erosion of Human Rights Through Regional Enforcement, 35 CAL. W. INT’L
L.J. 275, 275–76 (2005). Are you persuaded by the above critique? If not,
what arguments would you raise in response to the author’s views?
6. What purposes are served by Articles 60 and 61 of the African Charter
of Human and Peoples’ Rights, quoted in the article excepted above? If you
were a member of the African Commission on Human Rights, would these
articles influence your interpretation of the rights and freedoms in the
African Charter and if so how?

F. CUSTOMARY LAW OF HUMAN RIGHTS AND NONBINDING

HUMAN RIGHTS NORMS
1. CUSTOMARY LAW OF HUMAN RIGHTS
As the preceding materials illustrate, much of human rights law is now
codified in multilateral treaties adopted under the auspices of the United
240 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

Nations or regional organizations. By contrast, customary law, discussed at

pp. 193–97 above, has played a smaller part in human rights than in many
other areas of international law. Because human rights were not a substan-
tial subject of international relations before the Second World War, there
was little state practice relating to human rights. In addition, with an
active movement to protect human rights by treaty, there was less room—
and also less need—for international custom.
As noted above, however, treaties are binding only on states parties,
and states are unlikely to adhere to treaties that outlaw practices they are
determined to continue. The impetus for developing a customary law of
human rights developed in part from a near-universal desire to outlaw
some practices by one or two states, notably apartheid in South Africa. It
was also possible to establish a customary law of human rights in regard to
practices that no state was prepared to claim the right to practice, such as
torture and slavery. Finally, ambiguous definitions, and the absence of
supervisory bodies to monitor compliance have also lessened resistance to
identifying some norms as customary law.

Restatement (Third) of the Foreign Relations Law of

the United States
§ 702 (1987).

§ 702. Customary International Law of Human Rights

A state violates international law if, as a matter of state policy, it
practices, encourages, or condones
(a) genocide,
(b) slavery or slave trade,
(c) the murder or causing the disappearance of individuals,
(d) torture or other cruel, inhuman, or degrading treatment or punish-
ment,
(e) prolonged arbitrary detention,
(f) systematic racial discrimination, or
(g) a consistent pattern of gross violations of internationally recog-
nized human rights.

Comment:
a. Scope of customary law of human rights. This section includes as
customary law only those human rights whose status as customary law is
generally accepted (as of 1987) and whose scope and content are generally
agreedTTTT The list is not necessarily complete, and is not closed: human
rights not listed in this section may have achieved the status of customary
law, and some rights might achieve that status in the futureTTTT
b. State policy as violation of customary law. In general, a state is
responsible for acts of officials or official bodies, national or local, even if
the acts were not authorized by or known to the responsible national
authorities, indeed even if expressly forbidden by law, decree or instruction.
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 241

The violations of human rights cited in this section, however, are violations
of customary international law only if practiced, encouraged, or condoned
by the government of a state as official policy. A state is not responsible
under this section for a violation of human rights by an official that was
not authorized, encouraged, or condoned by the responsible governmental
authorities of the stateTTTT
A government may be presumed to have encouraged or condoned acts
prohibited by this section if such acts, especially by its officials, have been
repeated or notorious and no steps have been taken to prevent them or to
punish the perpetrators. That state law prohibits the violation and provides
generally effective remedies is strong evidence that the violation is not
state policy. A state is not ordinarily responsible under this section for
violations of human rights by individuals, such as individual acts of torture
or of racial discrimination. A state would be responsible if, as a matter of
state policy, it required, encouraged, or condoned such private violations,
but mere failure to enact laws prohibiting private violations would not
ordinarily constitute encouragement or condonation. International law
requires a state to outlaw genocide, slavery, and the slave trade, and the
state would be responsible under this section if it failed to prohibit them or
to enforce the prohibition.
Even when a state is not responsible under this section because a
violation is not state policy, the state may be responsible under some
international agreement that requires the state to prevent the viola-
tionTTTT
T T T
m. Consistent pattern of gross violations of human rights. The acts
enumerated in clauses (a) to (f) are violations of customary law even if the
practice is not consistent, or not part of a ‘‘pattern,’’ and those acts are
inherently ‘‘gross’’ violations of human rights. Clause (g) includes other
infringements of recognized human rights that are not violations of cus-
tomary law when committed singly or sporadically (although they may be
forbidden to states parties to the International Covenants or other particu-
lar agreements); they become violations of customary law if the state is
guilty of a ‘‘consistent pattern of gross violations’’ as state policy. A
violation is gross if it is particularly shocking because of the importance of
the right or the gravity of the violation. All the rights proclaimed in the
Universal Declaration and protected by the principal International Cove-
nants are internationally recognized human rights, but some rights are
fundamental and intrinsic to human dignity. Consistent patterns of viola-
tion of such rights as state policy may be deemed ‘‘gross’’ ipso facto. These
include, for example, systematic harassment, invasions of the privacy of the
home, arbitrary arrest and detention (even if not prolonged); denial of fair
trial in criminal cases; grossly disproportionate punishment; denial of
freedom to leave a country; denial of the right to return to one’s country;
mass uprooting of a country’s population; denial of freedom of conscience
and religion; denial of personality before the law; denial of basic privacy
such as the right to marry and raise a family; and invidious racial or
religious discrimination. A state party to the Covenant on Civil and
Political Rights is responsible even for a single, isolated violation of any of
242 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

these rights; any state is liable under customary law for a consistent
pattern of violations of any such right as state policy.
n. Customary law of human rights and jus cogens. Not all human
rights norms are peremptory norms (jus cogens), but those in clauses (a) to
(f) of this section are, and an international agreement that violates them is
void.

———

Smita Narula, The Right to Food: Holding Global Actors

Accountable Under International Law
44 COLUM. J. TRANSNAT’L L. 691, 777–80 (2006).

T T T

B. The Formation of Customary Human Rights Law

[T]wo elements TTT combine to make up customary international law:
general state practice and opinio juris, the belief that the practice is
obligatory. These two conditions are set out in § 702 of the Restatement,
and are widely accepted as indicators of customary international lawTTTT
The categories of state practice and opinio juris are by no means separate
and distinct; they exhibit a great deal of overlap and often come into
conflict. The overlap is in essence an expression of the complementary
nature of state practice and opinio juris. In many cases, states will not act
unless they feel obligated to, and states will not obligate themselves unless
it is consistent with how they wish to act.
Over the past several decades, the formation of custom has undergone
substantial changes. States acting in isolation are no longer the sole
contributors to the formation of custom. Decisions affecting state behavior
are increasingly made in collectives through conferences, declarations,
resolutions, and compacts. Our understanding of the elements of customary
international law must adapt to these changes in the global order. In
particular, we must look beyond the practice of individual states or explicit
expressions of legal obligations.
Traditionally, state practice was gleaned from claims and counter-
claims between two states, while opinio juris was gleaned from the expres-
sion of legal views by states, as embodied in official statements of nations
(by heads of state, organs of government, or those contained in declarations
and laws), or through statements concerning other nations’ practice or
opinionsTTTT [T]hese constructions of state practice and opinio juris are
inappropriate for the formation of custom in the area of human rights,
where states do not usually make claims directly on other states and rarely
protest one-on-one another state’s violations that do not affect their nation-
als. Rather, human rights issues are debated and sometimes resolved in
international forums. State practice and opinio juris is therefore more
likely to be found in states’ behavior in such forums. The Restatement
itself recognizes collective state action as evidence of state practice. It notes
that state practice includes ‘‘governmental acts and official statements of
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 243

policy, whether they are unilateral or undertaken in cooperation with other

statesTTTT’’
In the context of human rights law, opinio juris need not be verbal or
explicit. Insisting on a state’s explicit expression that it is acting out of
legal obligation is at best unrealistic. At worst, it acts as a disincentive to
the formation of customary human rights norms. From the perspective of
states, as long as they do not announce that their actions are in further-
ance of a legal obligation, the human rights norm will never be part of
customary international law and the state will never be bound to respect it.
Such an approach also severely undermines both the credibility and en-
forceability of human rights law and creates an impediment to the develop-
ment of customary human rights lawTTTT
Evidence of state practice and opinio juris should therefore be derived
from U.N. resolutions, declarations, plans of action; and statements by
government officials to the legislature, to the press, at international confer-
ences and at meetings of international organizations. The ratification of
human rights treaties also provides compelling evidence of both state
practice and opinio jurisTTTT
Judicial decisions can also have a formative effect on custom by
‘‘crystallizing emerging rules and thus influencing state behavior.’’ Similar-
ly, constitutional provisions provide the strongest articulation of a state’s
domestic legal obligations. They too offer evidence of opinio juris and, when
implemented, of state practice. In addition, non-state actors can affect both
the determination and development of custom in a variety of ways. Writ-
ings by influential publicists, for example, can help shape interpretations of
international lawTTTT

Anthea Roberts, Righting Wrongs or Wronging Rights?

The United States and Human Rights
Post–September 11
15 EUR. J. INT’L L. 721, 737–38 (2004).

T T T

C. Rethinking the Formation of Customary International Human Rights

The fact that executives may have a vested interest in not protecting
human rights demonstrates one of the problems in relying on customary
international law as a basis for developing international human rights.
Despite its name, some scholars embrace customary international law as a
progressive source of law that can respond to moral issues and global
challenges, such as human rights violations. key advantage of custom is
that it has the capacity to bind all states, unlike treaties which only bind
ratifying states. However, relying on custom as a source of human rights
obligations is often criticized on the basis that such obligations are not
based on state practice because they are honoured more in the breach than
in the observance. Responses to this argument typically include that: (a)
while some states violate human rights some of the time, most states
respect human rights most of the time; (b) even when states breach human
244 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

rights standards, they often deny these breaches rather than endorsing
them as official policy; and (c) human rights violations are often met with
protest from other states, so they represent breaches of existing law rather
than the beginnings of a new or modified law.
It is difficult to ‘‘save’’ customary human rights law using these typical
moves in this case because the United States is not the only state to have
reprioritized security concerns over some of the most fundamental human
rights. Many states are also not denying this recalibration but rather
endorsing it as an official policy. Breaches of human rights in the name of
fighting terrorism are also drawing disturbingly little protest from other
states. Scholars wishing to maintain the importance of human rights may
argue that we need to reconceptualize human rights obligations as general
principles of international law, which may be maintained even when they
are violated by states. Others may argue that we need to rethink the proper
formation of customary international law by, for example, minimizing the
requirement of state practice in the formation of normative customs, such
as human rights laws. However, even if we retain custom in its traditional
form, we must at least remember to look at the practice of all arms of
government, not just the practice of executives.
The overlap of executive interests may also result in renewed calls to
include the practice of some non-state actors, such as non-governmental
organizations (NGOs), in the formation of customary international law.
NGOs already play an indirect role in the development of international law
by placing and keeping issues on the agenda. In the war on terrorism,
human rights NGOs have played a critical role in holding states accounta-
ble because they are often prepared to criticize where others remain
silentTTTT Human rights NGOs often argue that trade-offs between human
rights and national security will result in more rather than less terrorism
and that terrorism can be effectively countered without restricting human
rights. These NGOs arguably marginalize themselves by so adamantly
prioritizing human rights over other factors in decision-making. However,
NGOs are not decision-makers who need to balance competing interests,
but rather fulfil the task of being interest groups that push for the
recognition of particular agendas[. I]f they were less adamant, they might
also be less effective. Either way, human rights NGOs provide an important
countervailing force against often mutually reinforcing executive interests.

Notes and Questions

1. Restatement Section 702 lists those human rights that were widely
viewed as customary law as of 1987. In the more than two decades
following the publication of the Restatement, government officials, courts,
and commentators have asserted that many other human rights are pro-
tected by customary international law. Such rights include, most notably,
many provisions of the Universal Declaration of Human Rights. See Hurst
Hannum, The Status of the Universal Declaration of Human Rights in
National and International Law, 25 GA. J. INT’L & COMP. L. 287 (1995–96);
Richard B. Lillich, The Growing Importance of Customary International
Human Rights Law, 25 GA. J. INT’L & COMP. L. 1 (1995–96). Whether a
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 245

particular human right has in fact attained the status of customary law is
sometimes a matter of dispute. See, e.g., Bruno Simma & Philip Alston, The
Sources of Human Rights Law: Custom, Jus Cogens, and General Princi-
ples, 12 AUSTL. Y.B. INT’L L. 82, 95 (1992) (critiquing Section 702 on the
grounds that ‘‘none of the rights which the U.S. fails to recognize in its
domestic law[] is included’’).
2. How, precisely, does one prove that a particular human right is
protected by customary international law? What evidence or sources must
be analyzed? Are the evidence and sources emphasized in the Restatement
the same as those discussed in the Narula and Roberts readings? If
multiple sources are consulted, are certain sources entitled to more weight
than others?
3. What conclusion should be drawn if state practice favoring the exis-
tence of a customary human rights norm is less than uniform? Consider the
following statement:
[U]niversality of behavior and unanimity are not required. Patterns of
human practice need only be general, not uniform, and patterns of
opinio juris need only be generally shared. Thus, a particular nation-
state might disagree whether a particular human right is customary
and its governmental elites might even violate such a norm, but it
would still be bound if the norm is supported by patterns of generally
shared legal expectation and generally conforming behaviour extant in
the community. If the patterns of violation become too widespread,
however, one of the primary bases of customary law can be lost.
Similarly, if it is no longer generally expected that a norm is legally
appropriate or required, the other base of customary law can be lost.
Jordan J. Paust, The Complex Nature, Sources, and Evidences of Custom-
ary Human Rights, 25 GA. J. INT’L & COMP. L. 147, 151 (1995–96). Does this
passage suggest that customary human rights can contract as well as
expand? In what circumstances are such expansions and contractions likely
to occur? How does one distinguish between the violation of an established
customary law rule and the erosion of such a rule?
4. For a discussion of customary human rights in the United States, see
Chapter 10(D), infra.

2. NON–BINDING INTERNATIONAL HUMAN RIGHTS NORMS

As explained at the beginning of this Chapter, the sources of interna-
tional law are comprised of treaties, custom (including jus cogens), and
general principles common to the world’s major legal systems. In practice,
however, states, international organizations, and even nonstate actors
frequently adopt international norms that are not legally binding. These
norms, which are often referred to by the somewhat oxymoronic label of
‘‘soft law,’’ do not qualify as international law in the formal sense. But they
can significantly influence the behavior of states. In the area of internation-
al human rights, the standards developed since World War II consist of a
combination of treaties, conventions, covenants, and other legally binding
instruments, as well as declarations, resolutions, model rules, and other
non-binding documents.
246 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

Professor Dinah Shelton has divided these non-binding human rights

standards into two categories—primary and secondary. She defines primary
soft law as ‘‘those normative texts not adopted in treaty form that are
addressed to the international community as a whole or to the entire
membership of the adopting institution or organization. Such an instru-
ment may declare new norms, often as an intended precursor to adoption of
a later treaty, or it may reaffirm or further elaborate norms previously set
forth in binding or non-binding texts.’’ Dinah Shelton, Commentary and
Conclusions in COMMITMENT AND COMPLIANCE: THE ROLE OF NON–BINDING NORMS
IN THE INTERNATIONAL LEGAL SYSTEM 449, 449–50 (Dinah Shelton, ed. 2000).
Examples of primary soft law include the U.N. Standard Minimum Rules
for the Treatment of Prisoners, adopted in 1957; the U.N. Standard
Minimum Rules for the Administration of Juvenile Justice (‘‘The Beijing
Rules’’), adopted in 1985; and the Declaration on Rights of Indigenous
Peoples, adopted in 2007. Primary non-binding instruments are also
adopted at the conclusion of UN-sponsored human rights conferences, such
as those in Teheran in 1968 and Vienna in 1993.
Professor Shelton describes secondary soft law as including ‘‘the rec-
ommendations and general comments of international human rights super-
visory organs, the jurisprudence of courts and commissions, decisions of
special rapporteurs and other ad hoc bodies, and the resolutions of political
organs of international organizations applying primary norms. Most of this
secondary soft law is pronounced by institutions whose existence and
jurisdiction are derived from a treaty and who apply norms contained in
the same treaty.’’ Id. at 452. The last two decades have seen a marked
increase in secondary soft law as a result of the growing number of legally
binding human rights treaties and monitoring bodies. The general com-
ments of U.N. treaty bodies, such as the Committee on Economic Social
and Cultural Rights, are among the most well known type of soft law
produced by such bodies.
Secondary soft law also derives from work of the special rapporteurs
and working groups appointed by the United Nations and regional organi-
zations to investigate specific human rights violations or practices in
particular countries. The mandates of these appointees may be based either
on a treaty or on a primary soft law text. Special rapporteurs and working
groups can create both primary and secondary soft law norms. As Professor
Shelton explains, the Special Rapporteur on Summary or Arbitrary Execu-
tions
worked with the U.N. Committee on Crime Prevention and Control in
developing a resolution on effective prevention and investigation of
extra-legal, arbitrary, and summary executions, adopted by ECOSOC
in 1989 and approved by the General Assembly. After the resolution
was adopted, the Special Rapporteur announced that he would hold
governments responsible for any ‘‘practice that fails to reach the
standards set out in the principles’’. In his 1993 report, the Special
Rapporteur refers to the Declaration on Torture, the Principles on the
Use of Force and Firearms by Law Enforcement, and the Standard
Minimum rules on the Treatment of Prisoners, and clearly seeks to
induce states to comply with all of them.
Id.
PAGES 190-98 ARE NOT REQUIRED BUT ARE RECOMMENDED FOR
STUDENTS WITH NO BACKGROUND IN INTERNATIONAL LAW

CHAPTER 5

THE INTERNATIONAL LAW OF

HUMAN RIGHTS
Universalization of the idea of human rights rendered it applicable to
all human beings in all societies. The internationalization of human rights
rendered the condition of human rights in every society a subject of
international political concern, and led to the gradual growth of an interna-
tional law of human rights and of legally binding undertakings by states to
respect and to ensure the human rights of persons subject to their jurisdic-
tion.
To provide a framework for analyzing those legally binding undertak-
ings, this Chapter begins with an overview of the sources of international
law and an introduction to human rights treaties and customary law. It
then reviews the structure and content of human rights agreements negoti-
ated under the auspices of the United Nations as well as regional human
rights treaty systems. The Chapter next considers customary and nonbind-
ing human rights norms. Following these introductory sections, the Chap-
ter provides a more in-depth treatment of the human rights of women and
children; human rights rules protecting refugees, and group and communi-
ty rights.

A. INTERNATIONAL LAW IN GENERAL: CHARACTER AND

SOURCES
The international law of human rights is part of international law
generally, and partakes of its essential character, values, principles, and
institutions. Like international law generally, the international law of
human rights is the law of ‘‘the international community of states,’’ made
principally by treaty and by customary law, and supplemented by ‘‘general
principles’’ that the international law of human rights has absorbed from
national legal systems. Unlike international law generally, however, inter-
national human rights law did not begin with a deeply-rooted basis in
customary law; it has been established primarily by treaty. But human
rights treaties—and the Universal Declaration of Human Rights that
inspired them—have also contributed to the growth and acceptance of
customary human rights norms.
The sources of international law are summarized in the Restatement
(Third) of the Foreign Relations Law of the United States.
190
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 191

Restatement (Third) of the Foreign Relations Law of

the United States
§§ 101–102 (1987).*

§ 101. International Law Defined

International law TTT consists of rules and principles of general appli-
cation dealing with the conduct of states and of international organizations
and with their relations inter se, as well as with some of their relations with
persons, whether natural or juridical.
T T T

§ 102. Sources of International Law

(1) A rule of international law is one that has been accepted as such by the
international community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal
systems of the world.
(2) Customary international law results from a general and consistent
practice of states followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and
may lead to the creation of customary international law when such agree-
ments are intended for adherence by states generally and are in fact widely
accepted.
(4) General principles common to the major legal systems, even if not
incorporated or reflected in customary law or international agreement, may
be invoked as supplementary rules of international law where appropriate.

* The Restatement (Third) of the For- ment, see, e.g., Paul B. Stephan, Courts, the
eign Relations Law of the United States was Constitution, and Customary International
drafted in 1987 for the American Law Insti- Law: The Intellectual Origins of the Restate-
tute under the guidance of Chief Reporter ment (Third) of the Foreign Relations Law of
Louis Henkin and Associate Reporters Andre- the United States, 44 VA. J. INT’L L. 33 (2003);
as Lowenfeld, Louis Sohn and Detlev Vagts. Curtis A. Bradley and Jack L. Goldsmith, III,
The Restatement is not itself binding law, The Current Illegitimacy of International Hu-
but ‘‘represents the opinion of the American man Rights Litigation, 66 FORDHAM L. REV.
Law Institute as to the rules that an impar- 319, 341–45 (1997) (criticizing Restatement
tial tribunal would apply if charged with de- claim that customary international law is fed-
ciding a controversy in accordance with inter- eral common law); but see Gerald L. Neuman,
national law.’’ Restatement, Introduction, at Sense and Nonsense About Customary Inter-
3. The Introductory Notes, or numbered sec- national Law: A Response to Professors Brad-
tions of the Restatement, as well as the ac- ley and Goldsmith, 66 FORDHAM L. REV. 371,
companying Comments, represent the views 377–380 (1997) (critiquing Bradley/Goldsmith
of the American Law Institute regarding the approach); Detlev Vagts et al., Book Review:
black letter law of the United States. The Restatement of the Law Third: The Foreign
Reporters’ Notes, by contrast, represent the Relations Law of the United States, 86 AM. J.
views and explanations of the reporters. INT’L L. 608, 609 (1992) (Restatement ‘‘char-
Some aspects of the Restatement have proven acterized by traditional and widely recog-
controversial. For critiques of the Restate- nized views’’).
192 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

Comment:
T T T
k. Peremptory norms of international law (jus cogens). Some rules of
international law are recognized by the international community of states
as peremptory, permitting no derogation. These rules prevail over and
invalidate international agreements and other rules of international law in
conflict with them. Such a peremptory norm is subject to modification only
by a subsequent norm of international law having the same characterTTTT

1. INTERNATIONAL AGREEMENTS
Among the sources of international law listed above, international
agreements between nations—also commonly known as treaties—are the
easiest for non-specialists to understand. They are also the primary mecha-
nism for developing the international law of human rights. The following
excerpts from the Restatement provide a basic definition of international
agreements and discuss the import place they occupy within the interna-
tional legal system. We discuss more specific topics relating to treaties, such
as reservations, interpretation, derogations, and withdrawals, later in the
Chapter.

Restatement (Third) of the Foreign Relations Law of

the United States
Part III. International Agreements (1987).

Introductory Note
International agreements are a major instrument of international
relations and the law of international agreements is at least as important a
part of the corpus of international law as the law of contracts is of national
legal systems. The law of international agreements derives additional
significance from the fact that treaties are a principal source of internation-
al lawTTTT
The law of international agreements has grown in significance and
scope since the Second World War, as international agreements have
assumed a larger place in the life of the international community of states
and in international law. The multilateral agreement is effectively the
principal instrument, and often the only instrument, for general legislation.
The United Nations Charter, for example, accepted by almost every state,
has legislated international law outlawing the use of force between
statesTTTT A network of international agreements has established the
international law of human rightsTTTT Multilateral agreements are used to
create international organizations and agencies—the United Nations and
the Specialized Agencies, the Organization of American States and other
regional organizations—and these agreements have the quality of constitu-
tional instrumentsTTTT Multilateral treaties are increasingly used also to
codify and develop customary international lawTTTT Multilateral agree-
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 193

ments may also contribute to the formation of customary law, so that

provisions in multilateral agreements may in effect be binding on states [as
international custom] whether or not they have subscribed to those agree-
ments.

§ 301. Definitions
As used in this Restatement,
(1) ‘‘international agreement’’ means an agreement between two or more
states or international organizations that is intended to be legally binding
and is governed by international law;
(2) ‘‘party’’ means a state or international organization that has consented
to be bound by the international agreement and for which the agreement is
in force.

Comment:
a. Various designations of agreements. The terminology used for
international agreements is varied. Among the terms used are: treaty,
convention, agreement, protocol, covenant, charter, statute, act, declara-
tion, concordat, exchange of notes, agreed minute, memorandum of agree-
ment, memorandum of understanding, and modus vivendi. Whatever their
designation, all agreements have the same legal status, except as their
provisions or the circumstances of their conclusion indicate otherwise.
T T T

§ 321. Binding Force of Agreement

Every international agreement in force is binding upon the parties to it
and must be performed by them in good faith.

Comment:
a. Pacta sunt servanda. This section states the doctrine of pacta sunt
servanda, which lies at the core of the law of international agreements and
is perhaps the most important principle of international law. It includes the
implication that international obligations survive restrictions imposed by
domestic lawTTTT

2. CUSTOMARY INTERNATIONAL LAW

Article 38(1)(b) of the Statute of the International Court of Justice,
which is regarded as an authoritative statement of international law’s
sources, defines international custom as ‘‘a general practice accepted as
law.’’ In essence, international custom, as described more fully below, is
comprised of rules that states implicitly accept as legally binding through
their conduct. We provide a general introduction to customary law here and
discuss its specific application to international human rights in Section (F),
infra.
194 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

Stephen C. McCaffrey, Understanding International

Law
44, 45–46, 47–48, 49, 51–53, 55–56 (2006).*

T T T
If treaties contain rules expressly recognized by states, customary
international law—or custom, for short—may be said to embody norms
they tacitly accept, through their conduct. There is no precise counterpart
to custom on the domestic level, which makes it somewhat challenging to
understand for the newcomer to international law. But there are rough
equivalents, such as the concept of custom and usage in commercial law,
which may have normative character even though it does not flow from an
official source such as statutory or case law; and the common law system
itself, which was customary in nature before the courts began to write it
down and develop it in their decisions.
T T T
[1] ‘‘A General Practice’’
Let us now look at the two elements of customary international law.
The first is a ‘‘general practice.’’ This expression raises two issues: how
‘‘general’’ must the practice be; and what qualifies as ‘‘practice.’’ With
regard to the first issue, as the term ‘‘general’’ implies, there is no
requirement that all states follow the practice. But it must at least be
followed or accepted by most of what the ICJ has referred to as the ‘‘States
whose interests are specially affected’’ (what qualifies as ‘‘acceptance’’ is
discussed below). Thus, while there is no precise formula for determining
what constitutes a ‘‘general’’ practice, it is clear that it is not enough that a
majority of states follow it. There is a qualitative element as well as a
quantitative one: most states, including those whose interests are specially
affected, should follow the practice.
But what about states that do not participate in the practice? Can they
exempt themselves from the operation of the rule? The answer is no, unless
they have regularly dissented from, or objected to, the rule during the
process of its formation. A State that has so dissented benefits from the so-
called ‘‘persistent objector’’ principle, which allows it, by following this
pattern of conduct during the rule’s formation, to opt out of a customary
rule. Examples of states exempting themselves from a rule through persis-
tent objection during its development are rare, however. Of course, after
the rule has been formed, or has ‘‘crystallized,’’ objection is fruitless and
conduct contrary to the rule is merely a violation of it. However if the
‘‘violations’’ themselves become the general practice, accepted as law, the
old rule is supplanted by a new one defined by what were originally
violations.
T T T

* Stephen C. McCaffrey, Understanding

International Law (2006); reprinted with the
permission of LexisNexis.
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 195

Having examined how ‘‘general’’ the practice of states must be to

qualify as a ‘‘general practice,’’ we may now turn to the second issue raised
by that expression, namely, what qualifies as ‘‘practice.’’ The practice of
states is nothing more than their conduct, or behavior. Conduct may be
active, as when a state affirmatively engages in a form of behavior, such as
sailing its vessels into certain maritime zones; or it may be passive, as
when a state refrains from protesting conduct by another state or from
opposing a developing norm. A variety of forms of state conduct may
qualify as ‘‘practice’’ for the purpose of developing a norm of customary
international law. According to the Restatement, state practice includes:
‘‘diplomatic acts and instructions as well as public measures and other
governmental acts and official statements of policy, whether they are
unilateral or undertaken in cooperation with other statesTTTT’’ Oppenheim
adds that the practice of states ‘‘in this context embraces not only their
external conduct with each other, but is also evidenced by such internal
matters as their domestic legislation, judicial decisions, diplomatic des-
patches, internal government memoranda, and ministerial statements in
Parliaments and elsewhere.’’
Returning to governmental acts ‘‘undertaken in cooperation with other
states,’’ this form of practice includes conduct of states in the context of
international organizations, such as the United Nations. In this connection,
it is generally acknowledged that while the U.N. General Assembly has no
legislative powers, resolutions it adopts TTT contribute to the formation of
customary international law. They must be evaluated carefully, but the
statements and votes of states in the General Assembly are a form of
conduct and may constitute state practice that can serve as evidence of
custom.
T T T
Whatever the form of practice, in order to contribute to the formation
of a rule of customary international law it must be consistent. This
requirement is almost self-evident, since a reasonable degree of consistency
is inherent in the notion of a ‘‘practice.’’ Further, if a practice is not
consistent it will be difficult to define it with the specificity necessary to
qualify it as a rule of law.
T T T
A final question with regard to the notion of practice is whether new
states, which did not exist when the practice occurred that gave rise to a
customary rule, are bound by the rule. This issue was raised especially by
newly independent states that emerged from colonialism, chiefly in the
early 1960s. They asked why they should be bound by rules they played no
part in creating and, indeed, which were established largely by the very
colonial powers from which they had achieved their independence. While
there is undeniable logic to this position, these new states did not press it
in practiceTTTT
[2] ‘‘Accepted as Law’’
Now that we have examined issues raised by the first element of
customary international law, a ‘‘general practice,’’ let us look at the second
element: the requirement that the practice be ‘‘accepted as law.’’ While the
196 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

first element is factual or objective, the second has been described as

psychological or subjective. This ‘‘mental’’ attitude, that a practice is
followed out of a sense of legal obligation, is referred to as opinio juris sive
necessitatis or, simply, opinio juris.
T T T
[An important] question raised by the opinio juris requirement has to
do with its apparent circularity: how can a rule be formed by a practice that
is required by the same rule? It is one thing to say that we must look for a
‘‘general practice accepted as law’’ when attempting to discover an existing
rule of custom; it is quite another to maintain that the customary rule itself
is formed by states conducting themselves in a certain way because they
believe they are required to do so. What is it that supplies that requirement,
if the practice has not yet ‘‘crystallized’’ into a customary norm? [T]here
does not appear to be a clear answer to this question.
The conundrum has led some commentators and jurists to throw up
their hands and simply infer the opinio juris from the fact of a constant
and uniform practice.
T T T
A possible solution to the problem of proving opinio juris has been
proposed by Anthony D’Amato. Professor D’Amato points to the impor-
tance of a ‘‘promulgative articulation’’ of a rule of international law
justifying a particular action: ‘‘The simplest objective view of opinio juris is
a requirement that an objective claim of international legality be articulat-
ed in advance of, or concurrently with, the act which will constitute the
quantitative elements of custom.’’121 Such a requirement would provide
strong evidence that a state believed it was acting out of a sense of legal
obligation and would also put other states on notice of the belief, giving
them an opportunity to respond by either challenging or accepting the
practiceTTTT The law must often infer intent from objective manifestations,
and the combination of acts and words characterizing those acts provides a
reasonable degree of reliability.
[3] Recent Challenges to Custom as a Source of Law
Recent scholarship has challenged the idea that customary internation-
al law influences national behavior or that it is legitimate or even useful as
a form of lawmaking in the modern world. These assaults on the citadel of
custom have been launched on a number of fronts. Some writers challenge
the generality of the practice and acceptance traditionally considered the
basis of custom, arguing that the developing world has largely been left out
of the process.128 Others maintain that custom emerges not from states
following a practice out of a sense of legal obligation, but from their
‘‘pursuit of self-interested policies on the international stage.’’129 TTT

121. ANTHONY A. D’AMATO, THE CONCEPT 129. Jack L. Goldsmith & Eric A. Pos-
OF CUSTOM IN INTERNATIONAL LAW 74 (1971) ner, A Theory of Customary International
(emphasis in original). Law, 66 U. CHI. L. REV. 1113, 115 (1999).
128. J. Patrick Kelly, The Twilight of
Customary International Law, 40 VA. J. INT’L
L. 449 (2000).
 CHAPTER 5 THE INTERNATIONAL LAW OF HUMAN RIGHTS 197

This robust debate is no doubt healthy. By focusing on the weaknesses

of the theory of customary international law, it enhances our understand-
ing of the complex process of international lawmaking. It seems clear,
however, that most governments, as well as such important institutions as
the International Court of Justice and the International Law Commission,*
accept the existence of customary international law and the manner in
which it is formed, as traditionally defined in Article 38, as well as the
utility of custom as a normative force. Thus, for the time being, at least, an
understanding of the traditional concept of customary international law, as
described in this section, remains relevant and important.

3. GENERAL PRINCIPLES
Restatement (Third) of the Foreign Relations Law of
the United States
§ 102 (1987).

Comment:
T T T
l. General principles as secondary source of law. Much of internation-
al law, whether customary or constituted by agreement, reflects principles
analogous to those found in the major legal systems of the world, and
historically may derive from them or from a more remote common ori-
ginTTTT General principles common to systems of national law may be
resorted to as an independent source of law. That source of law may be
important when there has not been practice by states sufficient to give the
particular principle status as customary law and the principle has not been
legislated by general international agreement.
General principles are a secondary source of international law, resorted
to for developing international law interstitially in special circumstances.
For example, the passage of time as a defense to an international claim by a
state on behalf of a national may not have had sufficient application in
practice to be accepted as a rule of customary law. Nonetheless, it may be
invoked as a rule of international law, at least in claims based on injury to
persons, because it is a general principle common to the major legal
systems of the world and is not inappropriate for international claims.
Other rules that have been drawn from general principles include rules
relating to the administration of justice [in international judicial proceed-
ings], such as the rule that no one may be judge in his own cause; res
judicata; and rules of fair procedure generally. General principles may also
provide ‘‘rules of reason’’ of a general character, such as acquiescence and
estoppel, the principle that rights must not be abused, and the obligation to
repair a wrong. International practice may sometimes convert such a
principle into a rule of customary law.

* [The U.N. General Assembly estab- of twenty-four members elected by the Gen-
lished the International Law Commission in eral Assembly for five-year terms. The Com-
1947 to promote the codification and progres- mission principally develops draft conven-
sive development of international law. The tions on international law subjects.—Eds.]
Commission meets annually and is composed
198 PART II HUMAN RIGHTS: LEGAL STANDARDS AND IMPLEMENTATION ISSUES

4. JUS COGENS

David S. Mitchell, The Prohibition of Rape in Interna-

tional Humanitarian Law as a Norm of Jus Cogens:
Clarifying the Doctrine
15 DUKE J. COMP. & INT’L L. 219, 228–29, 231–32 (2005).

Jus cogens means compelling or higher law. The jus cogens doctrine
defines peremptory norms from which no derogation is permitted and is
essentially a label placed on a principle whose perceived importance, based
on certain values and interests, rises to a level that is acknowledged to be
superior to another principle, norm or rule and thus overrides it. Drafted in
1969, Article 53 of The Vienna Convention on the Law of Treaties formally
defines the international legal principle of jus cogens:
A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is
a norm accepted and recognized by the international community of
states as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general interna-
tional law having the same character.
Peremptory norms represent the top of the international legal hierar-
chy and take precedence over TTT other sources of international law. They
protect the most compelling and essential interests of the international
community as a whole and invalidate treaty law and other ‘‘ordinary’’ rules
of customary international law not endowed with the same normative
forceTTTT
T T T
Jus cogens norms are notoriously difficult to identify, developing over
time through the general consensus of the international community. Al-
though jus cogens is widely acknowledged as a principle of international
law, there is no agreement on what constitutes the corpus of jus cogens
norms. Generally speaking, however, such a list would presumably include
genocide, crimes against humanity, war crimes, torture, aggression, piracy,
and slavery as accepted peremptory norms.

B. HUMAN RIGHTS AGREEMENTS UNDER INTERNATIONAL

LAW
Human rights covenants and conventions are governed by the inter-
national law of treaties, including the rules governing their formation, in-
terpretation, responsibility for violations, and termination. However, the
special character of human rights treaty obligations has inspired some dis-
tinctive doctrines and practices, for example in respect of reservations, the
methodologies for interpreting treaty-protected rights and freedoms, and
the entities responsible for compliance with those rights and freedoms.
Universal Declaration of Human Rights

Preamble

Whereas recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous
acts which have outraged the conscience of mankind, and the advent of a world
in which human beings shall enjoy freedom of speech and belief and freedom
from fear and want has been proclaimed as the highest aspiration of the common
people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between
nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their
faith in fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women and have determined to promote
social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation
with the United Nations, the promotion of universal respect for and observance of
human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the
greatest importance for the full realization of this pledge,
Now, therefore,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of
achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by
teaching and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal and
effective recognition and observance, both among the peoples of Member States
themselves and among the peoples of territories under their jurisdiction.

Article I

All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a
spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person
belongs, whether it be independent, trust, non-self-governing or under any other
limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment

or punishment.
Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent

and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.

Article 11

1. Everyone charged with a penal offence has the right to be presumed

innocent until proved guilty according to law in a public trial at which he
has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
 penalty be imposed than the one that was applicable at the time the penal
offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks.

Article 13

1. Everyone has the right to freedom of movement and residence within the
borders of each State.
2. Everyone has the right to leave any country, including his own, and to
return to his country.

Article 14

1. Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2. This right may not be invoked in the case of prosecutions genuinely
arising from non-political crimes or from acts contrary to the purposes and
principles of the United Nations.

Article 15

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.

Article 16
 1. Men and women of full age, without any limitation due to race, nationality
or religion, have the right to marry and to found a family. They are entitled
to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the
intending spouses.
3. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.

Article 17

1. Everyone has the right to own property alone as well as in association with
others.
2. No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 21
 1. Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government;
this will 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.

Article 22

Everyone, as a member of society, has the right to social security and is entitled
to realization, through national effort and international co-operation and in
accordance with the organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the free development
of his personality.

Article 23

1. Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal
work.
3. Everyone who works has the right to just and favourable remuneration
ensuring for himself and his family an existence worthy of human dignity,
and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of
his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.
Article 25

1. Everyone has the right to a standard of living adequate for the health and
well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social
protection.

Article 26

1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be
compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all
on the basis of merit.
2. Education shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further
the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be
given to their children.

Article 27

1. Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and
its benefits.
 2. Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the
author.

Article 28

Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.

Article 29

1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only
to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.

Article 30

Nothing in this Declaration may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.
 No. 1021

AUSTRALIA, BULGARIA, CAMBODIA,

CEYLON, CZECHOSLOVAKIA, etc.
Convention on the Prevention and Punishment of the Crime
of Genocide. Adopted by the General Assembly of the
United Nations on 9 December 1948

Official texts: Chinese, English, French, Russian and Spanish.

Registered ex officio on 12 January 1951.

AUSTRALIE, BULGARIE, CAMBODGE,

CEYLAN, TCHÉCOSLOVAQUIE, etc.
Convention pour la prévention et la répression du crime de
génocide. Adoptée par l'Assemblée générale des Nations
Unies le 9 décembre 1948

Textes officiels anglais, chinois, espagnol, français et russe.

Enregistrée d'office le 12 janvier 195L
278 United Mations— Treaty Series 1951

No. 1021. CONVENTION1 ON THE PREVENTION AND

PUNISHMENT OF THE CRIME OF GENOCIDE.
ADOPTED BY THE GENERAL ASSEMBLY OF THE
UNITED NATIONS ON 9 DECEMBER 1948

THE CONTRACTING PARTIES,

HAVING CONSIDERED the declaration made by the General Assembly of the
United Nations in its resolution 96 (I) dated 11 December 19462 that genocide
is a crime under international law, contrary to the spirit and aims of the United
Nations and condemned by the civilized world ;
RECOGNIZING that at all periods of history genocide has inflicted great
losses on humanity; and
BEING CONVINCED that, in order to liberate mankind from such an odious
scourge, international co-operation is required,
HEREBY AGREE AS HEREINAFTER PROVIDED :

1 Came into force on 12 January 1951, the ninetieth day following the date of deposit of the
twentieth instrument of ratification or accession, in accordance with article XIII.
The following States deposited with the Secretary-General of the United Nations their instruments
of ratification or accession on the dates indicated:
Ratifications Accessions
AUSTRALIA ....... 8 July 1949 *EULGARIA ....... 21 July 1950
By a notification received on 8 July 1949 the CAMBODIA ....... 14 October 1950
Government of Australia extended the ap- CEYLON ........ 12 October 1950
plication of the Convention to all terri- COSTA RICA ...... H October 1950
tories for the conduct of whose foreign JORDAN ........ 3 April 1950
relations Australia is responsible. KOREA. ........ 14 October 1950
Czechoslovakia ..... 21 December 1950 LAOS ......... 8 December 1950
ECUADOR. ....... 21 December 1949 MONACO ........ 30 March 1950
EL SALVADOR. ..... 28 September 1950 *POLAND ........ 14 November 1950
ETHIOPIA. ....... 1 July 1949 'ROMANIA. ....... 2 November 1950
FRANCE ........ 14 October 1950 SAUDI ARABIA. ..... 13 July 1950
GUATEMALA ...... 13 January 1950 TURKEY ........ 31 July 1950
HAITI ......... 14 October 1950 VIET-NAM ....... 11 August 1950
ICELAND ........ 29 August 1949
ISRAEL ......... 9 March 1950
LIBERIA ........ 9 June 1950
NORWAY. ....... 22July 1949
PANAMA ........ 11 January 1950
PHILIPPINES . ...... 7 July 1950
YUGOSLAVIA ...... 29 August 1950
* With reservations. For text of reservations, see pp. 314-322 of this volume.
a United Nations, document A/64/Add. 1. 31 January 1947.
280 United Mations Treaty Series 1951

Article I
The Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law which they
undertake to prevent and to punish.

Article II
In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such :
(a) Killing members of the group;
(£) Causing serious bodily or mental harm to members of the group;
(e) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(rf) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide ;
(c) Direct and public incitement to commit genocide;
(rf) Attempt to commit genocide ;
(e) Complicity in genocide.

Article IV
Persons committing genocide or any of the other acts enumerated in
article III shall be punished, whether they are constitutionally responsible
rulers, public officials or private individuals.

Article V
The Contracting Parties undertake to enact, in accordance with their
respective Constitutions, the necessary legislation to give effect to the provisions
of the present Convention and, in particular, to provide effective penalties for
persons guilty of genocide or of any of the other acts enumerated in article III.

Article VI
Persons charged with genocide or any of the other acts enumerated in
article III shall be tried by a competent tribunal of the State in the territory
No. I02Z
282 United Nations Treaty Series 1951

of which the act was committed, or by such international penal tribunal as may
have jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction.
Article VII
Genocide and the other acts enumerated in article III shall not be con
sidered as political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradi
tion in accordance with their laws and treaties in force.
Article VIII
Any Contracting Party may call upon the competent organs of the
United Nations to take such action under the Charter of the United Nations
as they consider appropriate for the prevention and suppression of acts of
genocide or any of the other acts enumerated in article III.
Article IX
Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention, including those relating
to the responsibility of a State for genocide or for any of the other acts enumer
ated in article III, shall be submitted to the International Court of Justice
at the request of any of the parties to the dispute.
Article X
The present Convention, of which the Chinese, English, French, Russian
and Spanish texts are equally authentic, shall bear the date of 9 December 1948.
Article XI
The present Convention shall be open until 31 December 1949 for signature
on behalf of any Member of the United Nations and of any non-member State
to which an invitation1 to sign has been addressed by the General Assembly.
1 In accordance with resolution 368 (IV) (United Nations, document A/1251, 28 December
1949), adopted by the General Assembly at its 266th meeting on 3 December 1949, the Secretary-
General was requested to despatch invitations to sign and ratify or to accede to the Convention..."to
each non-member State which is or hereafter becomes an active member of one or more of the special
ized agencies of the United Nations, or which is or hereafter becomes a party to the Statute of the
International Court of Justice".
Accordingly, invitations were addressed to the following States on the dates indicated below:
6 December 1949 Portugal 31 May 1950
Albania Romania Cambodia
Austria Switzerland Laos
Bulgaria Hashimite Kingdom Viet-Nam
Ceylon of the Jordan
Finland 20 December 1950
Hungary 27 March 1950 Germany
Ireland Indonesia
Italy 28 May 1951
Korea 10 April 1950 Japan
Monaco Liechtenstein
No. 1021
284 United Nations— Treaty Series 1951

The present Convention shall be ratified, and the instruments of ratifica

tion shall be deposited with the Secretary-General of the United Nations.
After 1 January 1950 the present Convention may be acceded to on behalf
of any Member of the United Nations and of any non-member State which
has received an invitation1 as aforesaid.
Instruments of accession shall be deposited with the Secretary-General of
the United Nations.

Article XII
Any Contracting Party may at any time, by notification addressed to the
Secretary-General of the United Nations, extend the application of the present
Convention to all or any of the territories for the conduct of whose foreign
relations that Contracting Party is responsible.

Article XIII
On the day when the first twenty instruments of ratification or accession
have been deposited, the Secretary-General shall draw up a procès-verbal* and
transmit a copy thereof to each Member of the United Nations and to each of
the non-member States contemplated in article XI.
The present Convention shall come into force on the ninetieth day
following the date of deposit of the twentieth instrument of ratification or
accession.
Any ratification or accession effected subsequent to the latter date shall
become effective on the ninetieth day following the deposit of the instrument
of ratification or accession.

Article XIV
The present Convention shall remain in effect for a period often years as
from the date of its coming into force.
It shall thereafter remain in force for successive periods of five years for
such Contracting Parties as have not denounced it at least six months before
the expiration of the current period.
Denunciation shall be effected by a written notification addressed to the
Secretary-General of the United Nations.

Article XV
If, as a result of denunciations, the number of Parties to the present Con
vention should become less than sixteen, the Convention shall cease to be in
force as from the date on which the last of these denunciations shall become
effective.
1 See note page 282.
" See p. 312 of this volume.
No. 1021
286 United Nations— Treaty Series 1951

Article XVI
A request for the revision of the present Convention may be made at any
time by any Contracting Party by means of a notification in writing addressed
to the Secretary-General.
The General Assembly shall decide upon the steps, if any, to be taken in
respect of such request.

Article XVII
The Secretary-General of the United Nations shall notify all Members of
the United Nations and the non-member States contemplated in article XI of
the following:
(a) Signatures, ratifications and accessions received in accordance with
article XI;
(b) Notifications received in accordance with article XII;
(d) The date upon which the present Convention comes into force in
accordance with article XIII;
(d] Denunciations received in accordance with article XIV;
|V) The abrogation of the Convention in accordance with article XV;
(/) Notifications received in accordance with article XVI.

Article XVIII
The original of the present Convention shall be deposited in the archives
of the United Nations.
A certified copy of the Convention shall be transmitted to each Member
of the United Nations and to each of the non-member States contemplated in
article XI.

Article XIX
The present Convention shall be registered by the Secretary-General of
the United Nations on the date of its coming into force.

No. 1021
 International Human Rights
Spring 2015

CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

Selected Reservations

INDIA
“With reference to article IX of the Convention, the Government of India declares that, for the
submission of any dispute in terms of this article to the jurisdiction of the International Court of Justice,
the consent of all the parties to the dispute is required in each case.”

PHILIPPINES
“. . . . The Philippine Government does not consider [Article IV] as overriding the existing immunities
from judicial processes guaranteed certain public officials by the Constitution of the Philippines.”