International Protection of Human Rights - Worksheet 1

International Protection of Human Rights (IPHR) – UOL LLB Programme – Nations School of Law
Worksheet 1
The Rise of Human Rights – Universalism vs Cultural Relativism
Introduction
The subject of human rights has experienced a very unique evolution over time. The work by the
International Human Rights Committee, the Vienna Conference and the very many other
international organizations and supranational bodies (WTO, IMF, EU. UN among others) have tried
relentlessly and has been in the assiduous pursuit towards establishing a universally accepted
Human Rights Treaty applicable across all jurisdictions (eastern and western). However, this process
of evolution requires an understanding, documentation and chronological passage of regional
recognition and acceptance towards an international acceptance. It is undisputable that
globalization has played a significant role in the relentless pursuit of establishing human rights on a
universal level. However, we need to trace the regional development first and foremost, then the
international development.
1. The rise of human rights in the EU
It should be noted that at the inception of the creation of the European Economic Community (as it
was then called) – was primarily focused on the economic benefits to be had from harmonization of
an internal market. Hence the name ECA. Then the name changed to the European Community and
eventually the European Union – which obviously widened the scope of the mandate of the EU
altogether. Initially it was understood that the approach adopted by the court of justice was
characterized by the recognition that the absence of written provisions of fundamental rights did not
negate their existence. subsequently, the treaties were amended to give greater and expressed
reference to human rights standards. The first time Human rights was explicitly referred to was in
the Maastricht treaty – Art 6 TEU. Art 6 TEU reflects three elements of human rights protection in
the Union. Despite some initial reluctance to pronounce on human rights matters, there was
pressure on the ECJ from the courts in Germany and Italy for union law to pay regard to
fundamental human rights. In Internationale Handelsgesellschaft – the court of justice held that
the protection of fundamental rights, whilst inspired by constitutional traditions common to member
states must be ensured within the framework of the structure and objectives of the union. In the
case of Omega – the court of justice stated that it was immaterial whether a fundamental human
right had its source in national constitution or union legal order as a general principle of law since
union law would protect such a right whatever its source.
2. The rise of human rights in the American states

The accession of the American states to human rights inevitably lead to the American Declaration of
Human Rights 1948 which made progress in the 1990’s towards abolishing the death penalty across
many states.
3. The rise of human rights in the African Union
Lead to the African charter on Human Rights. Some of its most significant contributions included
recognition of the right of existence, self-determination, international peace and security and
generally a clean and satisfactory environment.
4. The rise of human rights in the Arab States
Lead to the Arab Charter of Human Rights 2004. However, there were some concerns that some of
its provisions were inconsistent with the existing human rights standards. For example – Art 7 –
reservation to implement the death sentence on those below the age of 18 were inconsistent both
with international human rights convention as well as the international rights of the child. Art 2 (3)
reference to the prohibition of all forms of racism, Zionism and foreign occupation and domination
constituting an impediment to human dignity and a major barrier to existing fundamental rights of
the people was indeed questionable and publicly denounced by the UN High Commissioner as the
charter publicly equating Zionism with racism was not in conformity with the general assembly
resolution that rejects Zionism as a form of racism and racial discrimination.
5. The rise of human rights in South East Asia
ASEAN intergovernmental commission on human rights and the ASEAN human rights declaration.
Has been denounced as allowing too much cultural relativism and having been drafted without input
from civil society.
The use/ benefit of comparative law in human rights
See the following cases on the criminalization of euthanasia/ mercy killing in
US – Washington v Glucksberg
Uk – pretty v dpp, r v Nicklinson
Canada – Rodrigues v AG of Canada
human rights as part of international law – on the path to achieving universalism

human rights are beyond simple bilateral or multilateral treaties. Human rights have eventually
emerged as customary international law and then elevated itself to general principles of law. For
example the prohibition of arbitrary arrest and detention under the Universal Declaration of Human
Rights. Human rights have even established itself in the vertical hierarchy of international law. It
has been stated that human rights should be treated as having a superior position in international
law. There are two arguments posited in favour of this hierarchical placement of human rights in
international law:
(a) Art 103 of the UN charter states that in the event of conflict between provisions of the charter
and obligations under other international agreements, obligations under the CHARTER shall
prevail.
(b) The Vienna Convention on the Law of Treaties states that any treaty which at the time is in
violation of a peremptory norm (jus cogens) shall be considered void. A peremptory norm is a
norm that enjoys a higher rank in the international hierarchy of human rights and is superior
to any other treaty and even ordinary customary rules. The rule on the prohibition against
torturous, inhumane and degrading treatment/ punishment is a peremptory norm.
Human rights as peremptory norm (jus cogens)

How do you recognize peremptory norms in international human rights law? Are they universal or
regional? The Vienna convention refers to jus cogens being universal. However, there has been
uncertainty of the list of human rights falling under this category.
It has been accepted that rights such as prohibition of aggression, genocide, slavery, racial
discrimination, denial of rights of self determination have acquired the status of jus cogens and are
superior to other rights in the UN CHARTER / VIENNA CONVENTION. The problem however of
relying more systematically on Jus Cogens is determining the exent of STATE LIABILITY – if human
rights falling under jus cogens are breached. The breach of jus cogens rights should carry serious
consequences on state responsibility.
Jus cogens rights carrying Erga Omnes classification – binding on all member states and carrying
universal condemnation should allow one state to take action against another and suspend the rules
against extraterritorial jurisdiction of states. (see the rules under prohibition of torturous, inhumane
and degrading treatment
See also the issue of STATE IMMUNITY - see the case of AL – Adsani v UK (2001) – at para 66 – p/
103 in Olivier De Schutter (3rd edition)
“while the court noting the growing recognition of the overriding importance of the prohibition
of torture, does not accordingly find it established that there is yet acceptance in international law of
the proposition that states are not entitled to immunity in respect of civil claims for damages for
alleged torture committed outside the forum state. The UK Act granting immunity to states in
respect of personal injury claims unless the damages were caused within the UK was not
inconsistent with those limitations generally accepted by the community of Nations as part of the
doctrine of state immunity.

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International Protection of Human Rights (IPHR) – UOL LLB Programme – Nations School of Law

2. The rise of human rights in the American states

human rights as part of international law – on the path to achieving universalism

Human rights as peremptory norm (jus cogens)

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