Human rights law can be understood as customs, rules or practices that address the fundamental rights and freedoms of individuals. Human rights law can take many different forms, including international law, regional law, statutes of individual countries, and case decisions by the courts.
What are human rights?
Human rights are basic rights and freedoms. Those who believe in the universality of human rights believe that these rights belong to every person in the world, and that we are all equally entitled to these rights, regardless of where we are born.
Human rights include, for example, the right to liberty, to dignity, to equality and to be free from torture. There is no one set list of human rights. Which rights are recognised and protected depends on where in the world you live. Scholars, politicians, and human rights advocates debate which types of behaviour should be protected by these rights, and in what circumstances.
Take, for example, the right to legal gender recognition. This refers to the right to be recognised by your own internal experience of gender, not simply the gender recorded on your official identity documents. This offers protection to transgender people, whose appearance and identity documents may not match with their experience of gender. The right to legal gender recognition has been recognised in some regions of the world, but not in others. At this time, law suits across the world are testing the obligations of states to recognise an individual’s right to determine their own gender. In many countries, human rights legislation regarding the right to gender recognition is still being developed.
What is law?
Human rights are often set out in law in an attempt to offer protection to individuals and communities. But what is law? The question of how to define law has occupied philosophers and social scientists for many centuries. Whilst there is no simple answer to this question, there is a general agreement that law has certain key features. These are that law is:
- a custom, rule or practice
- law must be binding – i.e. those under the law are obliged to obey it; and/or
- law must enforced by a controlling authority
However, when we talk about human rights law, things can get complex. International Human Rights Law often stems from sources such as UN resolutions and recommendations which are neither binding nor enforceable. Therefore this gives us pause to re-assess our definition of law.
What is human rights law?
Human rights law is made up of international, regional and national laws. The following summary provides some examples. This is not a complete list!
International Human Rights Law
UN General Assembly Resolutions
The United Nations (UN) is an international organisation made up of 193 member states. The UN has played a huge role in the creation of human rights law. The first and possibly most famous international document about human rights law is the Universal Declaration of Human Rights. This was passed by UN General Assembly Resolution in 1948.
A general assembly resolution is a decision or declaration voted upon by member states. A resolution usually requires at least 50% of states to agree to it in order for it to pass. Since the Declaration of Human Rights, hundreds of GA Resolutions have been passed on human rights issues. GA Resolutions are not directly enforceable against member states. However they suggest international agreement on key human rights topics.
Conventions and Treaties
Since the Declaration, UN member states have ratified many different treaties and conventions on human rights issues. Two of the most important ones are the International Covenant on Civil and Political Rights, and the International Covenant of Economic, Social and Cultural Rights, both enacted in 1966.
There are also many other conventions addressing specific issues. For example, in 1989, the UN Convention on the Rights of the Child came into force. This document sets out the basic rights of all children in the world, including the rights to social security, the right to education and right to be protected from child labour. Of all the UN human rights law treaties, this is the most popular, with highest number of signatures from member states.
UN Human Rights Council Decisions
The UN human rights council is a body within the UN that has the power to conduct independent fact-finding investigations into human rights violations. There are currently investigations underway in various places including Venezuela, Burundi, Myanmar and Syria. The conclusions of the human rights council’s investigations, whilst not binding, are arguably a form of human rights law.
UN Security Council Resolutions
The UN Security Council is made up of five permanent members: China, France, Russia, the UK, and the US, and ten temporary members. The temporary members are elected for two year terms. The Security Council make decisions on urgent matters, which often involve measures to address human rights violations. For example, their most recent resolution was passed on 14 July 2020 and relates to the maintenance of international peace and security. The Security Council also has the power to impose sanctions against countries which are breaching international law. It can be argued that UN Security Council Resolutions are a form of international law.
Decisions of the International Court of Justice
This court is a UN body, which aims to resolve civil law disputes between member states. It contributes to the creation of human rights law. For example, it has issued important judgments regarding the protection of minority rights. It has also contributed to human rights law in respect of the consular rights of citizens who are detained whilst abroad.
Decisions of the International Criminal Court
The International Criminal Court takes on cases relating to war crimes and mass human rights violations against citizens. For example, it currently has cases ongoing against individuals allegedly involved in atrocities in Sudan. The International Criminal Court has helped define human rights law on the topic of crimes against humanity.
Regional Human Rights Law
Conventions and Charters
Some regions of the world have their own human rights framework. For example:
- The African Charter on Human and People’s Rights
- The European Convention on Human Rights
- The American Convention on Human Rights
These frameworks are all different, depending on the political priorities and cultural expectations of each region. Each framework applies only to that specific region. For example, the American Convention only applies to North, Central and South America.
Directives and Regulations
Other types of regional law also make up an important part of human rights law. For example, European directives regarding gender equal pay and rights within the workplace have had a significant impact upon labour rights in countries across Europe. Similarly, Europe-wide data protection laws have had a strong shaping influence upon the rights of Europeans to access and protect their own personal information.
Decisions of Regional Human Rights Courts
Regional courts decide upon key issues relating to how human rights conventions should be applied. For example, both the Inter-American Court of Human Rights and the European Court of Human Rights have made important judgments regarding the rights of victims of domestic violence to receive state protection when they are in urgent danger. The African Commission on Human and People’s Rights has made influential decisions on issues such as human rights violations against journalists in Cameroon, and child marriage in Mali.
National Human Rights Law
Constitutions
Nelson Mandela famously said, ‘to deny people their human rights is to challenge their very humanity.’ He went on to play an instrumental role in implementing South Africa’s constitution, which contains a comprehensive Bill of Rights. This document formed the foundation of South Africa’s new democracy in 1996, and is recognised as one of the most progressive statements on human rights in the world.
A constitution is a body of fundamental principles, and is the founding stone upon which that nation is built. For countries that have constitutions such as the United States, Iraq and South Africa, this is often the single most important piece of human rights law for their citizens. It is usually easier for a citizen to enforce human rights set out in their constitution, compared to seeking to enforce rights set out in international law.
Statutes protecting human rights
National legislation is also an important type of human rights law. It is particularly important in countries without a written constitution. For example, in England and Wales, the Human Rights Act 1998 sets out the rights to which its citizens are entitled. However, legislation is usually much easier for a government to change than a constitution. This means that there is a greater risk that it could be changed by a repressive government.
Decisions of National Courts
The courts of each country in the world make decisions upon human rights issues, which form part of that country’s human rights law. Important human rights law decisions are often made by a country’s highest court such as their Supreme or Constitutional Court. For example, in June 2020, the US Supreme Court gave a ruling which interpreted their Civil Rights Act 1964. The ruling held that the law, which prohibits discrimination on the basis of sex, also covers sexual orientation and transgender status.
This article has a provided a definition of human rights law and has set out some of its widely recognised forms. However, the conversation does not need to stop here. The definition of law is potentially very wide. Unwritten community customs and practices which uphold human rights could also be considered law. Perhaps you can think of other examples.
Jessie Waldman is qualified solicitor in England and Wales specialising in Human Rights and Civil Liberties and an LLM candidate in Human Rights Law at the University of Cape Town.
