Human rights: emerging issues and challenges
Most states are now voluntarily bound by UN and/or regional conventions in favor of human rights (HR). Does this mean that these rights have become a “legitimate concern of the international community”, as formulated in the Vienna Declaration of the World Conference on Human Rights?
Sixty-six years after the proclamation of HR as universal values, the results are mixed due to the very heterogeneous composition of international society and the interplay of power relations. HR violations remain significant in many parts of the world and their effectiveness is uneven. The global geopolitical upheavals in the late 1980s and early 1990s confirmed the strategic victory of liberalism. The political, economic and demographic changes as well as the emergence of new powers have revealed a fracture in HR universality and raised new questions about HR nature, rationale and effectiveness.
Currently, the debate around HR arises in terms of challenges relating to:
- On the one hand, the need to integrate new issues emerging from the economic, social and technological developments related to economic globalization and post-industrial revolution;
- On the other hand, the ability of the HR transnational institutional framework to make the rights enshrined in the various treaties more effective in an increasingly complex and fragmented world. The main challenge now is not so much about the principles and norms of HR international law but more about the way in which the latter are implemented both nationally and internationally.
Emerging issues and challenges
The evolution of business models, techniques or behavioral changes has given rise to new phenomena requiring the design and implementation of a transnational legal framework commensurate with these new challenges. These new issues can be broken down into three categories:
- Economic globalization, conflicts and their impact on the renewed understanding of the issue of population mobility, the fight against terrorism, corporate responsibility in the field of HR, the relationship between democracy and HR, and finally the right to intervene:
The effects of the financial and economic crisis and the decline of the welfare state have more severe repercussions on the poorest and the most vulnerable. However, poverty is both a cause and a consequence of a series of violations of mutually reinforcing fundamental human rights.
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (10 December 2008), which symbolizes the equal importance of all human rights by creating an international complaint mechanism of human rights violations, has been ratified only by fifteen States. In addition, more than twenty years after its adoption in 1986, the Declaration on the Right to Development is largely forgotten or diverted from its original meaning.
Based on international HR norms and standards, the Guiding Principles on Extreme Poverty and Human Rights (Human Rights Council, 2012) provide, for the first time, guidelines focused on the importance of human rights for development and poverty reduction, as well as the emergence of economic, social and cultural rights on the agenda of international cooperation.
The relationship between HR, as an expression of political liberalism (Locke, Montesquieu), and democracy, as an expression of popular sovereignty (Rousseau), is marked by convergence and antagonism. In fact, several initiatives, including in countries with strong democratic tradition, today attack in the name of people’s sovereignty certain fundamental HR, such as migrants’ rights, women’s rights, etc. In other words, should the sovereign people (and constituent) have the “final say” or should they accept a restriction of their power in the name of freedoms and human rights?
Corporate responsibility in the field of human rights has been brought to debate in relation to economic globalization. While the primary responsibility for ensuring respect for HR lies with States parties to HR treaties and conventions, it has become difficult for States, especially the poorest one, to fulfill this task in a globalized economy. The private sector, not subject to these commitments, can influence HR enjoyment much more than the State: a striking feature of globalization is the growing power of the private sector, particularly transnational companies that are out of control. It is in this spirit that the Human Rights Council in 2011 endorsed the Guiding Principles on Business and Human Rights, a global standard to prevent and counteract the potential negative impact of corporate activity on human rights.
The right to intervene is a new standard that is justified by the fight against serious violations of HR, in principle inalienable and universal as they are based on reason and not on cultural idiosyncrasies and are valid for all countries and all peoples. The current debate focuses on antagonisms and contradictions between two “principles” of international law:
- HR enforceability, which implies HR institutional supranationality and national sovereignty subsidiarity, on the one hand;
- The prohibition of interference in the internal affairs of States, which is a well-established standard of inter-state relations, on the other hand.
However, in the name of non-interference, States -both judge and defendant- are the masters of the game. This largely explains the limited progress achieved in supranational justiciability despite some recent advances: International Criminal Tribunal for Yugoslavia and for Rwanda, International Criminal Court, and tendency to admit extraterritorial jurisdiction of national courts in the defense of HR.
The right of interference raises the question of whether HR violation can be resolved by external initiatives or by internal stability and democracy.
Scientific and technological postindustrial revolution and its consequences
The considerable growth of biomedicine (biotechnologies applied to humans) and techno-science imposes new challenges to bioethics in relation to HR: human procreation; gene patenting (genome, human stem cells and other cell lines) and health care access for the poorest; interventions on the human body (therapeutic cloning, removals, management and sale of organs and tissues), end of life, prenatal or preimplantation genetic diagnosis; knowledge of genetic traits, etc. To date, the HR international normative framework has not been able to keep pace with this scientific development. Indeed, the utilitarian approach to bioethics considers that a life can be saved at the expense of another if the quality of the life saved exceeds that of the life sacrificed. In other words, an action is morally acceptable if it is considered more useful than harmful from the point of view of the person who acts and the common good of all concerned. However, this approach is subject to virulent criticism and opposition for its risks of abuse, on the one hand, and for the principle that every human being is holder of rights which are theoretically impossible to infringe, on the other hand.
New information and communication technologies (NICT) are a powerful tool for disseminating awareness about HR standards and their implementation worldwide. However, these new technologies bring to light new issues relating to the protection of privacy and personal data. In fact, the need to protect privacy and personal data requires new rules in view of the increasing possibilities of surveillance, both in the public and private sectors: biometrics, smart cards, geo-location, video surveillance by States and nongovernmental organizations (mobile operators, hotels, banks, insurance companies, airlines, etc.) in addition to risks of children’s exposure to NICT.
Social, demographic and behavioral changes have aroused new interest in the rights of certain categories and certain categories of rights, particularly the recognition of the rights of the LGBT and the elderly, the right to development, the right to peace, the right to enjoy the common heritage of mankind, and the right to a healthy environment, water and sanitation and food.
II. Challenges and risks relating to HR effectiveness
In her final speech at the end of her mandate, the High Commissioner for Human Rights, Louise Arbour said that “Today, States do not seem to show the same determination as that which drove them in the aftermath of the Second World War to strongly affirm the universality of our rights and our freedoms”. However, there is not a single person in the world who stands ready to voluntarily renounce HR guarantees and protections.
The low effectiveness of HR is a recurrent threat to HR universality and international instruments, including in democratic countries. This is attributed to a number of factors, mostly relating to:
- Legal schism, the hierarchy of norms and the fragmented approach to HR;
- The rise of cultural relativism and religious and identity particularities;
- Violations of HR indivisibility, particularly through the mechanisms of “reservations”;
- HR complaint and international justiciability mechanisms versus the principle of national sovereignty;
- Low awareness and dissemination of HR.
Legal schism, hierarchy of norms and fragmented approach to HR
The first generation of rights is the civil and political rights (called “classical” rights), originally enshrined in the American and French revolutionary texts. These rights are enforceable against the State (rights-freedom). The purpose of the first category of rights is to ensure individual protection against state arbitrariness.
The second generation includes “economic, social and cultural rights (ESCR)” which, unlike the first generation, need to be implemented by the State. Therefore, their holders somehow have a claim against the State (rights-claims).
In addition to difficulties related to the justiciability (the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights has been ratified so far by only 15 States) and low effectiveness of ESCR, political and ideological antagonisms are also at stake (while Western countries focus on first-generation rights, the group of non-aligned countries prefer second-generation ones). Liberals often consider ESCR as false claims because the State cannot meet second-generation rights unless it imposes on others to do so, which would violate their first-generation rights. To date, there is no solid compromise on the concomitance of both generations: “it is easier to access the ESCR if we enjoy civil and political rights and vice versa”.
Third-generation rights, called solidarity rights, include the right to peace, development, self-determination, healthy food and the environment. These new rights refer to a set of rights that are more or less defined and not enshrined in a major text as are those of the first generation. Considered as pertaining more to the field of ethics than that of the law, some of these rights raise discussions on the risk of weakening or distorting “traditional” fundamental rights.
However, the contradiction between different rights does not merely involve rights of different generations, but also rights of the same generation.
Human rights, fundamental rights and hierarchy of norms
Several specialized journals and authors emphasize the confusion and misuse of language prevalent in the discourse on human rights: undifferentiated uses, especially of such expressions as human rights, fundamental rights, civil liberties, etc. Two main trends compete to explain the distinction between fundamental rights and other rights. The proponents of the first doctrine claim that fundamental rights are prerogatives inherent in the human person, stemming somehow from a natural right transcending their recognition by the State (including life, dignity, freedom, equality, security and property). On the opposite, the proponents of the positivist movement view that these fundamental rights can only be explained if they are recognized/granted by the State.
Traditionally, international law is characterized by the principle of equality between all the rules of law. However, this lack of hierarchy of norms was particularly convenient for States as they could adhere -and contradictorily- to several rules of international law at the same time.
The Vienna Convention on the Law of Treaties (VCLT, 1969) theoretically put an end to this situation by enshrining a hierarchy between two categories of norms: basic or peremptory norms “jus cogens”, whose importance is such that no derogation from them is permitted, and other norms of law, called “dispositive standards”. Nonetheless, Article 53 of the VCLT does not specify the content of the “jus cogens” norms. The issue of identifying the normative content of “jus cogens”, its relevance to HR and the determination of the bodies empowered to do so has currently become urgent. Several fundamental rights and freedoms, mainly HR, “would deserve” to qualify as a peremptory norm, which justifies the need to ensure the effectiveness of their implementation. However, the distrust of States impact on the usefulness and appropriateness of its use in the sensitive area of ??fundamental rights and freedoms.
Indivisibility, universality and religious and identity particularity
Reservations to HR treaties
States can make reservations to international HR conventions. This possibility has perverse effects. It can actually be a way to deny HR universality. The corpus of HR is not a “menu” from which States could choose what suits them and ignore certain rights, such as equality for women or freedom of conscience.
Controversies about reservations to HR conventions and their effects have always opposed the school of “admissibility” or “permissibility” with that of “enforceability”. Indeed, the peculiarity of “normative” conventions is that they operate for each party per se, and not between the parties inter se. They involve mainly the assumption of duties and obligations, and do not confer direct rights or benefits on the parties as States”. The main peculiarity of HR treaties is that “their object is not to strike a balance between the rights and advantages which the States parties mutually grant to one another, but to establish common international rules reflecting shared values that all parties undertake to observe, each in its own sphere”. In several decisions, the European Court of Human Rights has noted that a reservation -or an “interpretative declaration” which, on analysis, proves to be a reservation- was impermissible or did not have the scope attributed to it by the respondent State, and has drawn the conclusions both that the State concerned could not invoke the impermissible reservation before it and that the State was no less bound by its ratification of the European Convention of Human Rights.
Universality and particularity
The specificities and particularities of any kind whatsoever are, in principle, admissible only if they do not violate the “equal dignity” and the equal rights of all human beings. However, the general HR trends tend to grant the “right to difference”, i.e. the “right to cultural or religious identity”, to groups (minority, religious, ethnic, migrant groups, etc.). States do not just have an obligation to tolerate differences and pluralistic expressions of collective identities; they also have an obligation to protect them in an active way. This has contributed to the de-legitimization of the classical model of the nation-State and the institutionalization of “multicultural” citizenship. Thus “collective pluralistic identities were made possible and encouraged by some States in a “separate” area, while the principles of equality and non-discrimination should in principle ensure the coexistence of all in a “common area””. In this way, States adhering to an understanding of HR as strictly individual rights are increasingly criticized. This involves certain risks and threats:
- Legal shift from the “right to difference” to a “difference of rights”;
- Rejecting HR universality in the name of cultural, ethnic or religious identity;
- Contradictions between individual and collective rights and the corresponding conflicts over HR interpretation;
- Political conflicts on the new role attributed to the State for active management of ethnicity, language and religion.
Complaint, HR international justiciability and national sovereignty
HR become truly fundamental only when a court is able to protect them effectively. In other words, judges, procedures and remedies ensure effective respect for HR (guarantee of rights, Declaration of 1789, Art. 16). However, to date, the protection of rights through (constitutional, regional and international) mechanisms and by judicial remedies is recent and incomplete, leading to low HR effectiveness.
Few rights and freedoms are recognized today as jus cogens (the highest norm of international law). Only the right not to be subject to torture or inhuman or degrading treatment is explicitly recognized as a peremptory norm. One of the first obstacles to the recognition of fundamental rights and freedoms as peremptory norms is that they are vague in terms of content and scope of implementation. Another obstacle is the fear of the hierarchization of fundamental rights which are indivisible in principle. Besides, international law is very political and remains characterized by “double standards”. The rules of international HR law do not apply in the same way in the great powers and in small countries (developing countries). The question therefore is: what is the utility of the jus cogens norm in the area of HR if no satisfying means to protect them can be implemented. Torture, which is strictly and absolutely prohibited in international law, is a common practice in many countries. Finally, if all or a large majority of HR are recognized as peremptory norms, the risk of devaluation and non-compliance by States will always remain.
The strictly legal nature of individual rights is limited. HR -universal in principle- are not universally effective and their effective implementation depends on each national authority. This situation means that in most cases, HR are considered as legal recommendations more than coercive legal rules.
Individual redress mechanisms of all HR conventions are optional and proportionally rarely used. Their action is limited to an exchange of information between the relevant bodies and States parties, since no sanctions are foreseen. The effective guarantee of HR depends therefore on the nature and forms of organization of States. Some authors even argue that HR somehow contribute to strengthening the power of the State since it is legitimized as a body responsible, first and foremost, for HR implementation.
The current debate in terms of antagonisms and contradictions concerns two “principles” of international law. The first is related to HR enforceability: HR institutional supranationality and the subsidiarity of national sovereignty. The second is related to a well-established inter-state relations norm, namely the principle of non-interference in the internal affairs of States. In the name of non-interference, States, both judges and parties, are masters of the game. This explains, in large part, the limited progress in terms of supranational justice despite some recent advances: International Criminal Tribunal for Yugoslavia and for Rwanda, International Criminal Court, and tendency to admit extraterritorial jurisdiction of national courts in the defense of HR.
Low HR awareness and dissemination
The majority of world population ignore that they have rights. According to the preamble of the Universal Declaration of Human Rights: “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. The French Declaration of 1789 underlined that “ignorance, forgetfulness, or contempt of the rights of man are the sole causes of public miseries and the corruption of governments”.
Conclusion: Towards a revival of human rights?
The specification and diversification of human rights make it likely that they can only be implemented partially and reinterpreted according to local contexts. It is even true that human rights are not a coherent system but represent conflicting expectations.
Nevertheless, the notion of human duties is much less institutionalized than human rights. This asymmetry is a cause of fragility for human rights because the enforcement of one person’s right is another’s obligation.
However, some factors are currently involved in the renewal of HR and their implementation and universalization. While the development of international HR law is still fragile, the crisis of welfare States and economic globalization have led to crises accompanied by the tendency towards the de-legitimization of increasingly less “sovereign” States. In the medium and long term, this will surely have consequences on the renewal and effectiveness of fundamental rights and freedoms: extension of the powers of judges, the rise of a civil society dominating the issue of human rights; and the revival of social movements calling for economic, social and cultural rights, which have so far been more or less relegated to the background. These trends point to promising avenues for the development of a more equitable international public order which would take into account, in a meaningful way, human rights in their indivisibility and universality as peremptory norms.
 Human Rights Council Resolution A/HRC/RES/21/11.
 Article 53 of the Vienna Convention on the Law of Treaties provides that a peremptory norm (jus cogens) 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 international law having the same character”.
 According to the specialized legal literature, the risk to petrify an evolutionary notion of essence and enshrine serious omissions explains why an enumerative list was not included in both the CDVT and in the Articles on Responsibility of States for Internationally Wrongful Acts (2001), which however devote a chapter III to “Serious breaches of obligations under peremptory norms of general international law”. The exact definition of the content of peremptory rules is left to State practice and the jurisprudence of international tribunals.
 Alain Pellet, “Law and practice relating to reservations to treaties”, Second Report on Reservations to Treaties, Extract from the Yearbook of the International Law Commission, 1996, vol. II (1).
 Matthias Koenig : « Mondialisation des droits de l'homme et transformation de l'État-nation. Une analyse néo-institutionnaliste », Droit et société 2007/3 (No. 67) ; Ed. Juridiques associées ; pp. 673-694.
 The conventional basis of the jus cogens norm was partially explained by the judicial practice of the United Nations, the Inter-American Court and the European Court of Human Rights. However, this case law remains hesitant and limited, thereby contributing to the low effectiveness of HR.
 Matthias Koenig.