WEDNESDAY, OCTOBER 3, 2012: Expansion of Human Rights Instruments
According to the doctrine of human rights, contrary to
legal/constitutional/legal rights, they are rights which are inherent to every
human being. This means no matter where they’re born, their age, their
ability, their location, etc. Because they are inherent, they cannot be given or
taken away. They only can be recognized in laws, in the constitution, in
international covenants, but they are not given. They can also be not
recognized and abused and ignored, but the fact that they are ignored doesn’t
mean they don’t exist.
The first universal recognition of human rights was in the 1945 Charter of the
UN, and they said that “the support and maintenance and expansion of
human rights” was one of the purposes of the UN. They didn’t expand this,
but they set up the UN Commission on Human Rights, which drafted the
The UDHR was passed on December 10 , 1948 with 48 for, none against, and
8 abstentions (from the Soviet Bloc, Saudi Arabia and South Africa). It was a
breakthrough in international law because:
It was the first time the rights of everyone in the world were
recognized by an international body.
Usually, treaties dealt with the rights of states vis-a-vis each other, and
this was the first time an major international treaty dealt with the
rights of individuals.
It was the first recognition of economic, social and cultural rights,
which came about due to pressure from the global south.
Being a declaration, it was not legally binding—it was an aspirational
document. Conventions and treaties are legally binding once ratified.
In the Canadian Charter of Rights and Freedoms there is no right to property
because they thought people could fight expropriation by the government.
Once a convention is voted on, it is sent out for ratification. There are two
steps to ratification—the signing of the treaty (which means you intend to
ratify it), and ratification when your government votes it into law. Sometimes
there needs to be a certain amount of ratifications for the treaty to come into
force (ex. the ICCPR and ICESCR took 10 years to come into force for this
Accession to a treaty: if a country is against the treaty and a few years later
they agree to ratify it (because the treaty is already in force at that point).
Following the adoption of the UDHR, there started a great expansion of more
specific human rights instruments. There has been success at the UN in developing human rights treaties and having them accepted (but how they
are implemented and adhered to is a different story). Things that were left
out in the UDHR were added in subsequent conventions. (ex. the UDHR didn’t
include a right to self-determination, but the ICCPR and the ICESCR both have
it as the first article and indigenous people have used this extensively).
When people started to apply principles in the UDHR and the two
conventions, there were disagreements. They felt the need to develop
individual specific conventions on specific subjects. The first was the
Convention on Genocide (1948) and the pressure for this occurred
from the Holocaust during WWII.
In the Convention on Genocide in 1948, the definition of genocide is
not just mass killings of people of the same ethnic group, but it
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.
In 1949, the four Geneva Conventions on War were created. The UN
charter itself outlaws war, but the four Geneva Conventions deal with
1951: The Convention on Refugees (has been used recently with the
1963: The Convention to Eliminate Racial Discrimination
1973: The Convention Against Apartheid
1981: The Convention to Eliminate Discrimination Against Women
1984: The Convention against Torture and Other forms of Cruel and
1989: The Convention on the Rights of the Child
1989: The Treaty on the International Criminal Court (provided a way
of enforcing the Convention Against Genocide and some aspects of the
There were conventions dealing with forced disappearances, on people
with disabilities, the declaration on the right to development, the
recognition of the rights to food, water, etc.
These emerged due to a need to define different rights and how they
work in detail and are interpreted, as well as due to absences in the
original UDHR. With a growing list of conventions, it became more
difficult to agree on what rights should be included (it was easier in 1948 with UDHR because WWII was fresh in people’s minds). As you
expanded human rights subjects, the area of disagreement grew
The Genocide Conventions: despite the fact that people said it would never
happen again after the Holocaust, it occurred against in Rwanda in 1993 and
800,000 were slaughtered. This triggered an impetus to do something to
enforce these conventions and bring perpetrators to trial. After WWII, the
Nuremburg Trials occurred to bring Germans to justice, but there were no
trials for the winning side because the perception was that what the Germans
did was worse. After this, there was an attempt to set up and international
criminal court to deal with war crimes and crimes against humanity. During
the Cold War, nothing was done, At the fall of the Soviet Union (fall of the
Berlin Wall, breakup of the Warsaw Pact), the International Criminal Court
was pushed ahead and it was approved at a conference in Rome in 1998. It
took 4 years to come into force (you needed 60 ratifications).
The Geneva Conventions: the implementation is carried out under the
International Red Cross.
1. The treatment of the wounded and sick on the battlefield. You must
treat them in a humane way.
2. Deals with people who are shipwrecked and how to treat these people.
3. Deals with ho you treat prisoners of war—it has a set of rules on how
to treat them.
4. The treatment of civilians in war—says you cannot bomb hosp