International Law: Can It Prevent Domestic Human Rights Abuses?

International Human Rights Law (IHRL) is a body of international law that aims to promote human rights on social, regional, and domestic levels. The Universal Declaration of Human Rights (UDHR), adopted in 1948, is considered the foundation of IHRL and has inspired over 80 international human rights treaties and declarations. While IHRL primarily comprises treaties between sovereign states intended to be legally binding, other instruments, such as declarations, guidelines, and principles, contribute to its understanding and development. The enforcement of IHRL is the responsibility of nation states, which must respect, protect, and fulfil human rights through domestic measures and legislation compatible with their treaty obligations. Where domestic legal proceedings fail to address human rights abuses, individuals can seek redress through mechanisms at the regional and international levels.

International human rights law and its obligations

International human rights law (IHRL) is a body of international law that aims to promote human rights at the social, regional, and domestic levels. It is primarily composed of treaties, or agreements between sovereign states intended to be legally binding, and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding, and development of IHRL and are recognised as a source of political obligation.

IHRL governs the conduct of a state towards its people in peacetime and is distinct from international humanitarian law, which governs the conduct of states and non-state armed groups during conflict. However, the two branches of law are complementary and overlap in some areas. IHRL includes general norms that apply to everyone at all times, as well as specialised norms that apply to specific situations, such as armed conflict, military occupation, or certain groups of people like refugees, children, and prisoners of war.

IHRL lays down obligations that states are bound to respect. By becoming parties to international treaties, states assume duties under international law to respect, protect, and fulfil human rights. The obligation to respect means that states must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires states to shield individuals and groups from human rights abuses. The obligation to fulfil means that states must take positive action to facilitate the enjoyment of fundamental human rights.

Through the ratification of international human rights treaties, governments commit to implementing domestic measures and legislation that align with their treaty obligations. When domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to ensure that international human rights standards are respected, implemented, and enforced locally.

The Universal Declaration of Human Rights (UDHR), adopted in 1948, is widely recognised as the foundation of IHRL. The UDHR, along with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, form the International Bill of Human Rights. The UDHR has inspired over 80 international human rights treaties and declarations, as well as numerous regional conventions, domestic human rights bills, and constitutional provisions, collectively constituting a comprehensive, legally binding system for the promotion and protection of human rights.

International humanitarian law and its obligations

International humanitarian law (IHL) is a set of rules that seeks to limit the effects of armed conflict. It is also known as "the law of war" or "the law of armed conflict". IHL is part of public international law, which is made up of treaties, customary international law, and general principles of law. It regulates the conduct of parties engaged in an armed conflict (jus in bello) and is distinct from public international law, which determines whether a state may lawfully resort to armed force against another state (jus ad bellum).

IHL lays out the responsibilities of states and non-state armed groups during an armed conflict. It requires, among other things, the rapid and unimpeded passage of humanitarian aid during armed conflicts, the freedom of movement for humanitarian workers in conflict areas, the protection of civilians (including medical and humanitarian workers), and the protection of refugees, prisoners, and the wounded and sick.

IHL is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols. While many parts of IHL are now accepted as international customary law, it is increasingly violated by warring parties. These violations include attacks on buildings belonging to relief organizations, hijacking of vehicles and convoys, attacks on hospitals and schools, and the murder or kidnapping of staff.

IHL is traditionally seen as distinct from international human rights law (IHRL), which governs the conduct of a state towards its people in peacetime. However, the two branches of law are complementary and overlap in some ways. IHRL is primarily made up of treaties and agreements between sovereign states intended to have binding legal effects, as well as customary international law.

Both IHL and IHRL impose obligations on states. By becoming parties to international treaties, states assume obligations and duties under international law to respect, protect, and fulfil human rights. In the context of IHL, states have a responsibility to incorporate IHL norms into their domestic law or otherwise implement them in their domestic legal system, take measures to prevent violations, investigate violations effectively, and provide effective remedies to victims.

The role of the International Criminal Court

The International Criminal Court (ICC), established in 2002, is a permanent tribunal that seeks to hold accountable those guilty of committing some of the world's worst crimes, including genocide, war crimes, and crimes against humanity. The court is based in The Hague, Netherlands, and has 124 member countries. The ICC is intended to complement national courts and can only act when national courts are found unable or unwilling to try a case.

The ICC has jurisdiction over four categories of crimes under international law:

• Genocide, or the intent to destroy a group, in whole or in part, on national, ethnic, racial, or religious grounds.
• War crimes, including grave breaches of the laws of war, such as torture, taking hostages, and attacking civilian populations.
• Crimes against humanity, or violations committed as part of a large-scale attack against any civilian population, including murder, rape, and persecution.
• Crimes of aggression, where a political or military leader plans or executes the use of armed force by a state against the territorial integrity, sovereignty, or political independence of another state.

The court can open an investigation in one of three ways: a member country can refer a situation to the prosecutor; the UN Security Council can refer a situation; or, with the approval of pretrial ICC judges, the prosecutor can launch an investigation independently. The ICC requires its members to seek a gender-balanced bench, and the judiciary must include representatives from each of the five regions of the United Nations. Judges and prosecutors are elected to non-renewable nine-year terms.

The ICC has faced criticism from various parties, including major powers such as the United States, China, and Russia, which are non-members. Some critics argue that the court has too little authority and is inefficient, while others believe it has too much prosecutorial power and threatens state sovereignty. The ICC has also been accused of disproportionately focusing on African countries, although recent investigations into conflicts in the Palestinian territories, Myanmar, Ukraine, and Venezuela seem to be broadening its reach.

Despite the criticisms and challenges it faces, the ICC plays an important role in the global rule of law and offers justice to victims of atrocities. The court's investigations and indictments, such as the arrest warrant for Russian President Vladimir Putin for the war crime of forcibly deporting Ukrainian children, have limited the ability of indicted individuals to travel abroad and attend diplomatic forums.

The Universal Declaration of Human Rights

The UDHR consists of a preamble and 30 articles that establish an individual's basic rights and fundamental freedoms. It asserts that all human beings are born free and equal in dignity and rights, regardless of nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. The Declaration covers a range of rights, including the right to life, liberty, security, freedom of movement, freedom of thought, freedom of expression, freedom of assembly, and the right to own property. It also addresses economic, social, and cultural rights, such as the right to work, the right to an adequate standard of living, and the right to education.

The UDHR is not legally binding but has influenced subsequent international treaties, regional instruments, and national constitutions. It has been translated into over 500 languages and is considered a foundational text in the history of human and civil rights due to its universal language, which transcends cultural, political, and religious boundaries. The Declaration has inspired legal, political, and social developments globally and nationally, and its significance is evident in its widespread adoption and influence.

While the UDHR itself is not binding, it has contributed to the development of international human rights law and the formulation of the International Bill of Human Rights, which includes the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These covenants, along with the UDHR, form the basis for international human rights law and the protection of human rights worldwide.

The enforcement of international human rights law

International human rights law lays down obligations that states are bound to respect, protect, and fulfil. The obligation to respect means that states must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires states to protect individuals and groups against human rights abuses. The obligation to fulfil means that states must take positive action to facilitate the enjoyment of basic human rights.

Through the ratification of international human rights treaties, governments undertake to put in place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are respected, implemented, and enforced at the local level.

There are two types of international human rights instruments: declarations and conventions. Declarations are not legally binding but have political impact. Conventions are legally binding under international law. Both declarations and conventions can become customary international law over time, which makes them universally legally binding.

A further distinction can be made between global and regional mechanisms for human rights protection. There are also individual domestic laws within states, which are the result of a vertical compliance pull of the internalization of international human rights norms derived from international and regional declarations and covenants.

The enforcement mechanisms for the protection of international human rights law include the treaty bodies attached to the currently active treaties, and the United Nations Human Rights Council complaints procedures, with Universal Periodic Review and United Nations Special Rapporteur (known as the 1235 and 1503 mechanisms respectively).

While there are shortcomings in the enforcement mechanisms of international human rights law, these weaknesses are due to unavoidable aspects of our anarchic global society, especially the principle of state sovereignty. The most powerful enforcer of human rights is the horizontal and vertical transnational legal process and the resulting internalization and socialization of human rights values. The acculturation of human rights within liberal democratic government frameworks encourages domestic internalization and the spread of these values among states.

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