Introduction to Human Rights Treaties

(adapted from Louis Henkin, Gerald Neuman et al., Human Rights (2d ed. 2009)

Until the Second World War, the idea of rights was a domestic constitutional idea,
recognized in a few—very few—countries. The French Declaration of the Rights of Man and of
the Citizen, had been shelved; the Constitution of the French Third Republic did not mention
rights. In the United Kingdom, a tradition of rights, traced to Magna Carta and supported by the
common law, benefited the inhabitants of the United Kingdom, but even their rights were subject
to parliamentary supremacy. Among political philosophers, natural law and natural rights had
fallen into disrepute, giving way to positivism and positivist theories of state sovereignty.
Throughout the world, human rights were a matter of domestic, not international, concern: How a
nation treated its own inhabitants was its own affair, not a subject of international politics, surely
not of international law.

All that changed with the Second World War, and the planning for and creation of a new
post-war order. The internationalization of human rights was confirmed in the United Nations
Charter, which declared that promoting respect for human rights was a principal purpose of the
United Nations Organization. The human rights idea found its expression in the Universal
Declaration of Human Rights adopted by the UN General Assembly in 1948, and in the
covenants and numerous treaties derived from it.

In its conception as well as in its realization, the "International Human Rights Movement"
has not sought to supplant national protection of human rights, but to make the protection of
human rights more effective within national systems. The international human rights movement
sought to "universalize" human rights, to have the idea of human rights recognized and rights
given protection in the constitutions and constitutional systems of all countries. International
human rights norms set forth an agreed minimum of rights to be guaranteed by every state
through its own national legal-political system. International remedies are designed to
supplement national remedies to make them more effective so that human rights are ensured in
fact, everywhere.

The system of human rights established within the United Nations is open to all nations.
As this system was taking shape in the years following the Second World War, countries in
several areas of the world – in Europe, in the Americas, and in Africa – began to develop
regional mechanisms to promote and protect human rights. These regional systems have now
been active for several decades. Each system has made numerous important contributions to
advancing international human rights law, in particular through the abundant case law of regional
human rights courts and commissions.

“The International Bill of Rights”

There is no single document entitled the “International Bill of Rights,” but that label is

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now commonly bestowed upon three instruments taken together—the Universal Declaration of
Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and
the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

Toward the end of the Second World War, several smaller states and non-governmental
organizations proposed that an International Bill of Rights be made a part of, or appended to, the
UN Charter. Although the Charter did not include such a document, the new UN Human Rights
Commission considered drafting a Bill of Rights when it began its work in 1946. The members
of the Commission quickly concluded, however, that such an exercise would be an extended
undertaking and that it would be preferable and more expeditious to produce a declaration of
rights while proceeding simultaneously to prepare a legally binding international agreement.

The UN General Assembly adopted the UDHR on December 10, 1948. The ICCPR and
ICESCR took a further eighteen years to complete (in 1966), and another ten years to come into
effect (in 1976). Ratification of the two Covenants proceeded slowly during the 1970s and 1980s,
but accelerated following the end of the Cold War. As of July 2020, 173 states were parties to the
ICCPR and 171 states were parties to the ICESCR.

a. The Universal Declaration of Human Rights

The UDHR is the foundational international instrument of the human rights movement. It
is widely viewed as authoritative, including by states that came into existence in the years since
its adoption in 1948. There has been no serious suggestion that the Declaration be reexamined or
amended, despite the fact that the world has changed significantly during the more than six
decades of its existence. Among the UDHR’s greatest contributions is its influence on the
development of constitutionalism and its reference or incorporation in numerous constitutions
adopted in the second half of the 20th century.

The content of the UDHR is a remarkable synthesis of political-civil and economic-social

rights, with equality and freedom from discrimination as major themes. Included in the former
category are the rights to life, liberty, and security of person, to fair criminal process, to freedom
of conscience, thought, expression, association, and privacy; the right to seek and enjoy asylum,
to leave one's country and return to it, rights to marriage and family, and rights of property. The
UDHR also declares the will of the people to be the basis of the authority of government, and
called for universal suffrage and bona fide elections. Its social and economic provisions include
the right to work and to leisure, to health care, and to education. The Declaration does not
expressly distinguish between civil and political rights and economic and social rights. But states
recognized from its inception that the two categories of rights may have different theoretical
justifications, and that each may require different normative elaboration, different types of legal
obligations, and different remedies for their violation.

The formal status of the UDHR in international law remains somewhat unsettled. The
General Assembly adopted the UDHR as a nonbinding statement of principles (albeit one that

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some commentators viewed as an elaboration of the inchoate human rights obligations in the
Charter). As such, the Declaration was not eligible for ratification by UN member states.
Nevertheless, as national executives, legislatures, and courts referenced the UDHR with
increasing frequency, a consensus emerged that at least some of its provisions had become
binding as a matter of customary international law. Given the large areas of overlap between the
Declaration and other human rights treaties, disputes over its legal status arise only infrequently.
But the conclusion that a provision of the UDHR had achieved the status of customary law
would, for example, be important for states that have not ratified the ICCPR or the ICESCR or
have done so with broad reservations.

Following the adoption of the UDHR in 1948, the Human Rights Commission began the
task of elaborating a legally binding agreement that contained, in a single instrument, all of the
rights the Universal Declaration proclaimed. However, Western states insisted upon bifurcating
the draft treaty, which eventually resulted, in 1966, in the adoption of two separate
covenants—the ICCPR and the ICESCR. Notwithstanding the formal separation of the two
treaties and categories of rights they contain, subsequent UN resolutions have repeatedly
reaffirmed the equal value, indivisibility, and interdependence of both categories of rights. See,
e.g., Vienna Declaration and Programme of Action, World Conference on Human Rights, U.N.
Doc. A/Conf. 157/23 (July 12, 1993).

b. The International Covenant on Civil And Political Rights (ICCPR)

The core operative provisions of the ICCPR are contained in Article 2. Article 2.1
provides that “[e]ach State Party to the present covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant . . . .” Article 2.2 further requires each state party to “to take the necessary steps . . . to
adopt such legislative or other measures as may be necessary to give effect to the rights
recognized in the present Covenant.” And Article 2.3 specifies “that any person whose rights or
freedoms as herein recognized are violated shall have an effective remedy,” which shall be
“determined by competent judicial, administrative or legislative authorities . . . .” In addition, the
ICCPR establishes international mechanisms to monitor the implementation of the treaty by
states parties.

The “rights recognized” in the ICCPR include the civil and political rights in
Articles 1–21 of the UDHR, generally with only minor differences. (One exception is the right to
property.) Civil and political rights are often described as negative liberties, that is, as freedoms
and immunities that a state can respect by leaving the individual alone. In fact, to describe all
civil and political rights as negative is misleading. Several of such rights apply in the criminal
process, by which a state may legitimately take liberty and property (or even life) in punishment.
But in those cases the state is required not merely to leave the individual alone but “positively” to
organize its institutions and laws to assure against arbitrary detention, and to provide due
process, fair trial, and humane punishment. Moreover, the obligation to “ensure” some rights has
been interpreted as requiring the state to take steps to protect them against private infringement.

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 Several civil and political rights protected in the ICCPR are expressed in categorical
terms. For example, Article 8.1 provides that “[n]o one shall be held in slavery; slavery and the
slave-trade in all their forms shall be prohibited.” However, other civil and political liberties in
the Covenant (and in other human rights treaties and national constitutions) are not absolute. One
person’s right may conflict with another’s, and one right may be limited by another right; in
addition, individual rights may impinge on other societal values or public interests.

Rights limitations in the ICCPR generally follow a common pattern. The first sentence or
paragraph of an article describes the protected right or freedom, and the second sentence or
paragraph enumerates the limitations that states may permissibly impose on that right or freedom.
For example, the Covenant describes the right of assembly in the following terms:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or public safety,
public order (ordre public), the protection of public health or morals or the protection of
the rights and freedoms of others.

ICCPR Art. 21 (emphasis added).

The words emphasized above reveal that limitations on rights are themselves restricted,
and that the articulated purposes of limitations are to be narrowly construed. Some of the
highlighted terms have historic meanings in national constitutional jurisprudence. For example,
the Covenant’s drafters emphasized the special character that “ordre public” had in French
jurisprudence, a meaning that was not fully captured by the English words “public order.”
See Alexandre C. Kiss, Permissible Limitations on Rights, in The International Bill of Rights
(Louis Henkin ed., 1981). Over time, however, human rights tribunals and treaty bodies have
developed a rich and extensive international jurisprudence that elaborates and refines the
meaning of each of these key phases.

The Human Rights Committee (HRC) is the independent expert body created by the
ICCPR for monitoring compliance by states parties with their obligations under the treaty. Its
overbroad name reflects a historical moment when no other treaty bodies were contemplated.
The HRC has three principal activities: the examination of states’ reports, the decision of
individual communications, and the writing of General Comments. Each of these activities has
evolved over the lifetime of the Committee. State reporting is a major public event for the HRC,
and each dialogue covers a wide range of civil and political rights issues in the particular
reporting state. The dialogue results in a set of “Concluding Observations” setting forth the
HRC’s concerns about the human rights situation in the reporting state, and its recommendations
for addressing them. Communications involve claims of violation by a specific individual
against a particular state, and are processed in confidence until the case has been decided and
published. General Comments address recurring legal issues of substance or procedure under the

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ICCPR, without being focused on any particular state, and in drafting these General Comments
the HRC now receives several rounds of public input, and deliberates on the text in open session.

c. The International Covenant on Economic, Social, and Cultural Rights (ICESCR)

The bifurcation of the Universal Declaration on Human Rights into two legally binding
covenants—one addressing civil and political rights and the other concerning economic, social
and cultural rights—highlighted a number of differences between the two categories of rights.
These include the nature and scope of the obligations assumed, the permissible limitations on
rights that may be imposed in the public interest, and the procedures for monitoring compliance
and implementation by state parties.

The adoption of a legally binding international agreement to protect economic, social and
cultural rights did little to resolve competing conceptions of how to structure the relationship
between state values and human values. Although the drafters intended the ICESCR to be
acceptable to socialist states, developing nations, and industrialized “free-market” countries, the
differences between the two Covenants have been often characterized as reflecting political and
ideological divisions between these groups of countries. In addition, some wealthy nations
resisted what many poorer states demanded—commitments by the former to provide economic
assistance to the latter to help satisfy economic and social needs of their inhabitants.

Compromises concerning these areas of disagreement are reflected in the distinctive

phrasing of the ICESCR’s text. Consider the obligations of states parties in Article 2:

Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and cooperation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.

In comparing Article 2 of the ICESCR to the quoted provisions of Article 2 of the ICCPR
above, several differences are immediately apparent. Note in particular the phrases “to take
steps”, “through international assistance and cooperation”, “to the maximum of its available
resources” and “to achieving progressively” in Article 2 of the ICESCR.

According to some commentators, these phrases signal that the rights protected in the
ICESCR are “programmatic and promotional” in nature, to be achieved incrementally over time.
It is nevertheless undisputed that the ICESCR imposes legally binding obligations on states
parties, and the Committee on Economic Social and Cultural Rights—the counterpart to the
Human Rights Committee in the ICCPR—has developed an extensive jurisprudence that
interprets and extends ICESCR rights and freedoms in novel and important ways. Most
importantly, the ICESCR Committee has developed a tripartite framework of obligations for all
states parties—the obligation to respect, the obligation to protect, and the obligation to fulfill.

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 In the Committee’s distinctive taxonomy, “obligations to respect” entail responsibilities
of direct application and effect, “obligations to protect” generally require states to prevent
interference by third parties (particularly nonstate actors) in the enjoyment of the right in
question, and “obligations to fulfil” involve the duty of states parties to adopt appropriate
legislative, administrative, budgetary, judicial, promotional, and other measures aimed at
“the full realization” of the rights in question.

Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social, and Cultural Rights,
98 Am. J. Int’l L. 462, 491 (2004).

d. Refugees and Asylum

The two Covenants did not, however, explicitly address a major problem of the Twentieth
Century: the plight of refugees and internally displaced persons. The Universal Declaration
recognizes the right of any individual “to leave any country, including his own,” and the right “to
seek and to enjoy in other countries asylum from persecution.” UDHR Arts. 13(2), 14(1). The
Covenant on Civil and Political Rights restates the former right, but not the latter. ICCPR Art.
12(2). Nonetheless, most rights under the Covenants are expressed as right of persons, not rights
of nationals, and some issues concerning rights of refugees and other migrants can be reached
using these more general rights.

Voluntary policies of asylum have a long history, but the modern regime of rights of
refugees took shape in 1951 when, responding to the post-war situation in Europe, the United
Nations prepared a Convention Relating to the Status of Refugees. The Refugee Convention
accorded imortant protections and economic-social benefits but only to refugees as narrowly
defined and only in a State Party to the Convention to which the refugee was lawfully admitted.
A refugee not lawfully admitted has one principal safeguard under the Convention, the right of
non-refoulement: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social group or political
opinion.” Art. 33(1).

At the regional level, the principal human rights convention of the African system and the
Inter-American system each includes an express provision on asylum. African Charter on
Human and Peoples’ Rights, Art. 12(3); American Convention on Human Rights, Art. 22(7).
The European Convention on Human Rights does not.

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“International Bill of Rights”:
Universal Declaration of Human Rights (1948)
International Covenant on Civil and Political Rights (ICCPR) (1966)
International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966)

Principal Regional Human Rights Conventions with Regional Courts:

European Convention on
Human Rights (1950)
American Convention on
Human Rights (1969)
African Charter of Human
and Peoples’ Rights (1981)
Council of Europe European Court of Human Rights
Organization of Inter-American Court of Human Rights
American States (plus Inter-American Commission on Human
Rights)
African Union African Court of Human and Peoples’ Rights
(plus Inter-American Commission on Human
and Peoples’ Rights)

Nine Principal Global Treaties with Treaty Bodies: # SPs

International Covenant on Civil and Political Rights Human Rights Committee 173*
(ICCPR)
International Covenant on Economic, Social, and Committee on Economic, Social 171
Cultural Rights (ICESCR) and Cultural Rights
Convention on the Elimination of All Forms of Racial Committee on the Elimination of 182*
Discrimination (CERD) Racial Discrimination
Convention on the Elimination of All Forms of Committee on the Elimination of 189
Discrimination Against Women (CEDAW) Discrimination against Women
Convention Against Torture and other Cruel, Inhuman Committee against Torture 170*
or Degrading Treatment or Punishment (CAT)
Convention on the Rights of the Child (CRC) Committee on the Rights of the 196†
Child
Convention on the Rights of Persons with Disabilities Committee on the Rights of 182
(CRPD) Persons with Disabilities
International Convention for the Protection of All Committee on Enforced 63
Persons from Enforced Disappearances (CED) Disappearances
International Convention on the Protection of the Committee on Migrant Workers 55
Rights of All Migrant Workers and Members of Their
Families (CMW)
* US a party
† US is only UN member state not a party to CRC, but US is a party to two optional protocols to CRC.

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