The Normative and Institutional Evolution of International Human Rights

Thomas Buergenthal

I. Introduction

This article analyzes the different stages in which contemporary international human rights law has evolved. ¹ The starting point of this analysis is the Charter of the United Nations (Charter), which laid the foundation of modern international human rights law. ² While it is true that international law recognized some forms of international human rights protection prior to the entry into force of the UN Charter, "the internationalization of human rights and the humanization of international law" ³ begins with the establishment of the United Nations. ⁴ The Charter ushered in a worldwide movement in which states, intergovernmental, and nongovernmental organizations [End Page 703] are the principal players in an ongoing struggle over the role the international community should play in promoting and protecting human rights.

The idea that the protection of human rights knows no international boundaries and that the international community has an obligation to ensure that governments guarantee and protect human rights has gradually captured the imagination of mankind. The end of the Cold War has de-ideologized the struggle for human rights and reinforced the international human rights movement. Today violators of human rights can no longer count on one or the other superpower to shield them against international condemnation, a practice which in the past had a very detrimental effect on the development and application of human rights law.

This is not to say that massive violations of human rights are no longer being committed, nor that the international institutions designed to prevent such violations are all in place and working effectively. Many governments still violate human rights on a massive scale and others would prefer to be free to do so. But the fact is that they are increasingly being forced by a variety of external and internal factors to respond for their behavior to the international community. This reality limits their freedom of action and in many, albeit not all, cases contributes to an improved human rights situation.

What we have here is a dynamic and ongoing process that has its normative basis in the Charter of the United Nations. The Charter in turn has given rise to a vast body of international and regional human rights law and the establishment of numerous international institutions and mechanisms designed to promote and supervise its implementation. ⁵ The evolution of international human rights law over the past fifty years can be divided into a number of stages. ⁶ It would be a mistake to assume, however, that each of these stages can be neatly separated from later or even earlier developments in this field. But although there is considerable overlap between these stages, they provide useful guideposts in tracing the manner in which modern international human rights law has evolved. [End Page 704]

II. Stage One: the Normative Foundation

The first stage in this process begins with the entry into force of the UN Charter and continues at least through the adoption in 1966 of the International Covenants on Human Rights. ⁷ By this time, the Universal Declaration of Human Rights ⁸ had been adopted by the United Nations, as had the Genocide Convention ⁹ and the Convention on the Elimination of All Forms of Racial Discrimination, ¹⁰ to mention only the principal human rights instruments. During this same period, the European Convention on Human Rights ¹¹ entered into force; the Organization of American States proclaimed the American Declaration on the Rights and Duties of Man; ¹² and UNESCO and the ILO, respectively, promulgated the Convention against Discrimination in Education ¹³ and the Convention Concerning Discrimination in Respect of Employment and Occupation. ¹⁴

This period, in short, witnessed the normative consolidation of international human rights law. It is true, of course, that this process continues to this day. It is equally true, however, that in these first 20 years following the establishment of the UN the process had become irreversible. Two very important factors explain this development. First, the human rights provisions of the Charter, supplemented by the Universal Declaration of Human Rights and other human rights instruments, came to be accepted as defining the basic human rights obligations that the Member States of the United [End Page 705] Nations had accepted by ratifying the Charter. That is to say, while some states still argued in the early days of the United Nations that the Charter imposed no human rights obligations whatsoever on them, that view was no longer tenable by the end of the 1960s. Second, once it was acknowledged that the Charter, a multilateral treaty, had created some human rights obligations for the Member States, it followed as a matter of international law that human rights had, to that extent, been internationalized and removed from the protective domain of a subject that previously was essentially within their domestic jurisdiction. ¹⁵

The idea that the United Nations should become the international protector of the rights of the individual grew out of the tragic experience of the Second World War and the horrendous violations of human rights committed in the Holocaust. Many wartime leaders believed that the rise of Hitler could have been averted had there existed in the 1930s a strong international organization with authority to address human rights issues. To them it was critical that the experience with the League of Nations, which was weak and lacked the power to deal with human rights issues, not be repeated. ¹⁶ One would therefore have expected the UN Charter to contain provisions establishing an effective international system for the protection of human rights. That did not come to pass because of opposition from the major powers--the United States, the Soviet Union, France, and the United Kingdom. These states all had serious human rights problems of their own at the time ¹⁷ and were therefore not prepared to agree to strong commitments in the area of human rights. Although various smaller countries favored the inclusion of a bill of rights in the Charter, they lacked the political influence [End Page 706] to prevail. That explains why the human rights provisions of the Charter, as adopted in San Francisco, were purposefully drafted to be weak and vague. ¹⁸

The three major human rights provisions of the Charter are Articles 1(3), 55(c), and 56. ¹⁹ The first of these provisions recognizes that one of the "purposes" of the United Nations is international cooperation in solving various international problems, including "humanitarian" problems, and "in promoting and encouraging respect for human rights and fundamental freedoms for all without distinctions as to race, sex, language, or religion." This provision is amplified by Article 55(c), which reads as follows:

With a view to the creation of conditions of stability and well-being which are necessary for the peaceful and friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, the United Nations shall promote: . . .

(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 56 imposes the same obligations on the Member States by providing that "all Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55." ²⁰

These provisions did not establish an immediate obligation to guarantee or observe human rights, nor did they define what was meant by "human rights and fundamental freedoms." They imposed the much vaguer obligation to "promote . . . universal respect for, and the observance of, human rights" and to take "joint and separate action in co-operation with the Organization" to achieve this purpose. The only unambiguous provision in these articles is the prohibition of discrimination. Despite their vagueness, the human rights provisions of the Charter had a number of important consequences. ²¹ First, as we have already noted, the Charter internationalized the concept of human rights. This did not mean that as soon as the [End Page 707] Charter entered into force, all human rights issues were ipso facto no longer matters essentially within the domestic jurisdiction of states. It meant instead that states had assumed some international obligation relating to human rights, although their full scope remained to be defined and that, as far as these obligations were concerned, the states could no longer claim that human rights as such were essentially domestic in character. Second, the obligation of the Member States of the UN to cooperate with the Organization in the promotion of human rights provided the UN with the requisite legal authority to undertake a massive effort to define and codify these rights. The foundation of this codification effort was laid by the proclamation in 1948 of the Universal Declaration of Human Rights. Adopted as a non-binding UN General Assembly resolution, the Declaration was designed, as its preamble indicates, to provide "a common understanding" of the human rights and fundamental freedoms referred to in the Charter and to serve "as a common standard of achievement for all peoples and all nations. . . ." ²² But the Declaration not only gave meaning to the phrase "human rights and fundamental freedoms" used in the Charter, over time it came to be accepted as a normative instrument in its own right which, together with the Charter, spelled out the human rights obligations incumbent upon all UN Member States. ²³

The success of the UN effort is reflected in the adoption of the International Bill of Rights ²⁴ and in the vast number of international human rights instruments in existence today. The entry into force of each new treaty in this field has further internationalized the subject of human rights as between the parties to them. It has also endowed the individuals for whose benefit these treaties were concluded with international legal rights. The state practice spawned by the vast network of human rights treaties continues to create a growing body of customary international law on the subject. Hence, a definition of international law that did not today recognize the individual as the direct beneficiary of international human rights law and, to that extent, a subject of international law, would be blind to contemporary legal and political realities. [End Page 708]

III. Stage Two: Institution Building

The second stage in the evolution of international human rights law begins in the late 1960s and continues for the next fifteen to twenty years. This is the era of institution building. During these years we find two distinct developments taking place within the UN framework. The first focused on the nature or scope of the human rights obligations that Articles 55 and 56 imposed on the Member States. Only after this issue had been resolved could the UN begin to create institutions and mechanisms to enforce their obligations. From a strictly legal point of view, the answer to the question concerning the obligations of UN Member States turned on the meaning of the phrase "to promote . . . universal respect for, and observance of, human rights and fundamental freedoms. . . ." ²⁵

It could certainly be argued that this provision did not require states at the time of their ratification of the Charter to stop any and all violations of human rights. It was much too vague for that. Even so, how long could a state go on violating human rights before running afoul of the Charter? Were there at least some human rights violations that had to stop? It took the UN a long time to provide some clear answers to these questions. They were eventually provided and grew out of the UN's struggle to put an end to apartheid. Apartheid came gradually to be characterized as a pervasive violation of all basic human rights, a governmental policy implemented on a massive scale against a large segment of the population. ²⁶ In this context, the meaning of the obligation "to promote," however vague in the abstract, became concrete in the sense that a UN Member State which embarked on or maintained such a policy could certainly not be deemed to be "promoting human rights and fundamental freedoms" and was, therefore, in violation of its Charter obligations. This principle was formally established with the adoption of ECOSOC Resolution 1235 (XLII) of 6 June 1967. ²⁷ It authorized the UN Human Rights Commission "to make a thorough study of situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheid as practised in the Republic of South Africa . . . and racial discrimination as practised notably in Southern Rhodesia. . . ." This resolution was followed by ECOSOC Resolution 1503 (XLVIII) of 27 May 1970, ²⁸ which empowered the UN Sub-Commission on [End Page 709] the Prevention of Discrimination and Protection of Minorities to develop a mechanism for dealing with communications from individuals and groups revealing "a consistent pattern of gross and reliably attested violations of human rights." The Sub-Commission and the UN Human Rights Commission implemented this resolution by establishing the necessary procedures for dealing with such communications.

These two ECOSOC resolutions continue in force to this day and serve as the foundation of the UN Charter-based system for the protection of human rights. They have given birth to an ever expanding institutional mechanism within the UN framework for dealing with large-scale human rights violations that embrace the mushrooming rapporteur and special missions system as well as the UN High Commissioner for Human Rights. These institutions have their juridical basis in the Charter, complemented by the Universal Declaration of Human Rights. Although most of them were created in the late 1960s to respond to the scourge of apartheid, they have been invoked since the early 1980s to address massive violations of human rights in general. ²⁹

The period here under consideration also saw the emergence and consolidation of universal and regional treaty-based institutions for the protection of human rights. In the mid to late 1970s the UN Human Rights Committee ³⁰ and the Committee on the Elimination of Racial Discrimination (CERD) ³¹ came into being with the entry into force of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The entry into force in 1978 of the American Convention on Human Rights brought with it the establishment of the Inter-American Commission and Court of Human Rights. ³² Although the European Convention of Human Rights came into effect as early as 1953, it was not until the late 1960s and early 1970s that the institutions it created, particularly the Court, began to play an important [End Page 710] role in the implementation of the Convention. ³³ In 1978, moreover, UNESCO adopted a special mechanism for dealing with human rights violations falling within its sphere of competence. ³⁴ ILO institutions for dealing with human rights issues ³⁵ predate those referred to above, whereas those established under the African Charter on Human and Peoples' Rights did not come into being until after the entry into force of that instrument in 1986. ³⁶

The establishment of these and related institutions also contributed to the emergence of nongovernmental human rights organizations and laid the basis for their growing significance. Although some of these groups existed much earlier, their number and strength, and their activism begin in this period. ³⁷ The creation of the intergovernmental human rights institutions referred to above provided the nongovernmental organizations with their raison d'être for filing human rights complaints and mounting human rights enforcement campaigns on the national and international plane. In earlier times their principal role consisted of the promotion of normative instruments.

There are a number of interrelated political reasons to explain some of these developments. The end of the colonial era and the vast expansion the UN underwent in the late 1950s and early 1960s resulted in the admission to the UN of many newly independent states, particularly from Africa. These states were unanimous in their commitment to ending apartheid. That could only be achieved by developing and strengthening UN mechanisms for dealing with this egregious human rights problem. By supporting these UN measures with regard to apartheid, the Soviet Union and its allies gave the Western democracies a strong political opening in favor of expanding the [End Page 711] jurisdiction of UN human rights mechanisms to embrace not only apartheid but any other massive violations of human rights.

These diverse efforts by the West, the East, and the nonaligned nations focused a great deal of public attention on UN human rights activities. They gave rise to worldwide expectations about the important role the UN and other international organizations should play in addressing human rights violations. Many states now found it increasingly difficult for political and propaganda reasons not to give at least some lip service to international human rights efforts, making it harder for them to oppose the establishment of various international and regional human rights institutions. The entire subject gained dramatic political significance with President Jimmy Carter's widely publicized commitment to making human rights the center piece of US foreign policy and his willingness to act on this commitment. While it is open to debate how much the Carter Administration actually achieved in improving the human rights situation in the world, it cannot be doubted that President Carter did succeed in placing human rights firmly and irrevocably on the international political agenda. Human rights thus acquired political respectability as an important element in the contemporary Realpolitik equation. By addressing an issue of genuine concern to peoples all over the world, the struggle for human rights had become a political force difficult for many governments to ignore. Ironically, the more each side to the ideological conflict and the nonaligned nations sought to exploit human rights for their own political and propagandistic ends, the more the idea of an effective international system for the protection of human rights captured the imagination of mankind. It made many institutional developments in this field possible. And this despite the fact that a large number of these same governments did not believe in human rights and would have preferred to keep the subject off the international agenda altogether.

IV. Stage Three: Implementation in the Post Cold War Era

The institutions referred to in the preceding section did not come fully into their own until the mid to late 1980s when they could begin to focus on adopting effective measures to ensure state compliance with their international obligations. ³⁸ This process continues to this day. It is one thing to establish institutions on the international plane to promote and protect human rights, it is quite another to give them the authority and tools they need to achieve their objective. States are more likely to agree to the [End Page 712] creation of human rights institutions than to cooperate with these institutions when they or their allies are charged with human rights violations. It must be recognized, however, that the political factors which contributed in large measure to the creation of human rights institutions in the first place--the ideas that inspired the international human rights movement and captured the imagination of mankind--make it increasingly more difficult for states not to comply with their human rights obligations.

During the period here under consideration, the world underwent dramatic changes to which the human rights revolution contributed significantly and from which the revolution also benefitted significantly. The end of the Cold War freed many nations in Europe from Communist rule, permitting them to embark on a process of democratic transformation. What is more, it liberated international efforts to promote human rights from the debilitating ideological conflicts and political sloganeering of the past. These developments have enabled the UN to focus increasingly on obstacles to the implementation of human rights.

The end of the Cold War and its effect on human rights is reflected in part in the text of the 1993 Vienna Declaration on Human Rights. ³⁹ The pervasive scope of the Declaration, evidenced by the fact that it addresses most, if not all, modern human rights concerns, is one of its striking features, as is the fact that it does so, on the whole, in a politically balanced and serious manner. While it does not come up with solutions to the many intractable problems facing the international community in this field, the Declaration identifies them and in the process demonstrates that there are few, if any, human rights issues today that are not of international concern. The catalogue embraces civil and political rights, economic, social and cultural rights, the right to development, the rights of refugees and internally displaced persons, humanitarian law issues, the rights of minorities and of indigenous peoples, the rights of women, the rights of the disabled and of children, etc. It is in this context that the statement in paragraph 4 of the Declaration that "the promotion and protection of all human rights is a legitimate concern of the international community" (emphasis added), gains its true significance. Hence, it would appear that the dividing line between domestic and international human rights issues is no more because its factual and legal basis has disappeared. More importantly, the international community is today free to say so.

This same idea also finds expression in another, equally important [End Page 713] principle proclaimed in the Vienna Declaration. Paragraph 5 of that instrument declares that

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. ⁴⁰

The recognition of the universal character of human rights and the concomitant rejection of cultural relativism, which has traditionally sought to justify violations of human rights by reference to some special religious or cultural imperatives, lays the foundation for global efforts to improve the human rights situation of all human beings.

Read together, paragraphs 4 and 5 of the Vienna Declaration do away with two major impediments to the implementation of human rights which prevented effective international action in the past: the artificial distinctions between domestic and international human rights concerns, on the one hand, and cultural relativism, on the other. The Vienna Declaration also addressed a third obstacle: the myth that all governments, whether democratic or not, can protect human rights and that a state's form of government could not be deemed to affect its compliance with international human rights standards. This legal and political fiction--another product of the Cold War--forced the international community for decades to close its eyes to massive human rights violations having their source in political systems antithetical to the protection of human rights and the rule of law. In paragraph 8, the Vienna Declaration put this myth to rest by proclaiming that "democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing." This provision declares further that "democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives." Paragraph 8 concludes by urging the international community to "support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world." ⁴¹

The notion that genuine democracy and the protection of human rights go together, a concept that could not have been proclaimed during the Cold [End Page 714] War, found expression some time earlier with the adoption in 1990 of the Copenhagen Concluding Document of the Conference on Security and Cooperation in Europe. Whereas this document laid the foundation for the establishment of a democratic European public order, ⁴² the Vienna Declaration can be read to have done the same for the world as a whole. This is not to say that all nations of the world have now become democracies or even that they are close to this goal. Unfortunately for the enjoyment of human rights, neither is the case as yet. It does mean, however, that the absence of democracy in a state is today in itself a violation of the human rights of its population and that the international community has the right for that very reason to concern itself with efforts designed to remove obstacles to its democratization. ⁴³

While the removal of these political myths and legal fictions has enabled the international community to focus more realistically on the task of getting governments to comply with their international human rights obligations, genuine progress in this area will continue to be slow. There is increasing recognition today that the task is a very difficult one even with the best intentions of governments. Underlying many human rights violations are deeply rooted social causes. They cannot be overcome by governmental decrees alone. Poverty, corruption, disease, lack of educational resources, and economic and political underdevelopment are but a few factors that contribute to violations of human rights. These are not problems that can be solved overnight. Solutions often require financial and human resources that are scarce and require international cooperation and development efforts. The fact that various international lending institutions, such as the World Bank, and regional development banks, have begun to channel resources into efforts to create and strengthen national institutions capable of promoting the rule of law and democratic pluralism, in addition to economic development, is an important step in the process of implementing human rights.

In some regions of the world considerable progress has nevertheless been made in the implementation of human rights. During the period here under consideration the human rights system established under the European Convention of Human Rights gained institutional maturity. In fact, by the time the Soviet Union collapsed, the European Court of Human Rights had for all practical purposes become the constitutional court of Western Europe. The recent accession to the European Convention of the former [End Page 715] Eastern and Central European allies of the Soviet Union as well as some of the new Soviet Republics has the potential of transforming the Court into the constitutional court of all Europe. This process may take longer, however, than one might assume at first glance because the newer members face many serious political, economic and social problems ⁴⁴ that few, if any, of the Western European members confronted when they first joined the Convention system.

The inter-American human rights system, which came into being later than its European counterpart, was unable for many years to play a major role in improving the human rights situation in the Americas. For decades the region was in the grips of oppressive regimes that engaged in massive violations of human rights behind a veil of impunity sustained at the height of the Cold War by superpower protection. With the onset of the process of transition to democracy in that region, which began in the mid-1980s, the inter-American human rights system could finally focus on implementation. The judgments of the Inter-American Court of Human Rights in the late 1980s, exposing the heinous practice of disappearances for all the world to see, ⁴⁵ opened the way for the Court and the Inter-American Commission on Human Rights to play a much more active role in protecting human rights in the Americas. Unlike Western Europe, however, the Americas is a region still very much in the process of development, with serious social and economic problems, poverty, and corruption. Moreover, there are some countries where the military, while ostensibly no longer in power, remains a real force to be reckoned with. Transition to democracy has a long way to go in the region, despite the impressive progress made in the past few years. It is clear, though, that those who believed in the 1960s and 1970s that oppressive military regimes were the only obstacle to the effective protection of human rights and genuine democracy in the region proved to be only partially right. By the same token, it is probably true that the process of democratization is now irreversible. Moreover, while the human rights problems of the region cannot be solved by merely substituting a freely elected government for a military regime, the inter-American human rights system has in recent years been able to point to some real successes. ⁴⁶ [End Page 716]

The same cannot be said as yet of the African human rights system. It still faces many of the problems that afflicted the inter-American system two decades ago as far as repressive regimes are concerned and even greater economic, social, and political obstacles. The poverty, corruption, underdevelopment, disease, tribal conflicts, and many other scourges that affect African society today make the task of the African Commission on Human and Peoples' Rights extremely difficult. The liberation of South Africa from apartheid--in itself probably the greatest victory to date of the human rights revolution--and that country's emergence as the foremost democratic nation on the African continent, as well as some promising trends towards democracy in the region, cannot in the long run do anything but strengthen the role of the African Commission.

The African Commission, the human rights organs of the inter-American system, and the treaty bodies established within the UN framework all suffer from a very serious lack of financial resources. This fact has very harmful consequences for their ability to discharge their responsibilities. The real tragedy here is that at precisely the moment in history when conditions are, on the whole, more favorable than ever before for the implementation of human rights on the global and regional levels, the institutions assigned the task of promoting and supervising this process are for financial reasons not able to do so satisfactorily. Here it should be said that while resources are scarce everywhere, the real reasons for at least some budget-cutting activities affecting human rights bodies have more to do with a desire of certain governments to limit the power of these institutions than with genuine budgetary concerns. Given the contemporary human rights revolution, it is politically easier today to cut the budget of a human rights body by pointing to a lack of funds than by suggestions that its activities are not important.

V. Stage Four: Individual Criminal Responsibility, Minority Rights and Collective Humanitarian Intervention

A. Individual Criminal Responsibility

In confronting violations of internationally guaranteed human rights, the international community has traditionally focused on holding governments rather than individuals internationally responsible. The assumption here was that governments have a duty not only not to violate human rights, but also to control all activities taking place within their territory, including the obligation to punish human rights violations. Although the post World War II war crimes trials, the Geneva Conventions on humanitarian law, and some international human rights treaties, notably the Genocide Convention, [End Page 717] established individual international criminal responsibility for some of the most egregious violations of human rights, such as genocide, crimes against humanity, and war crimes, ⁴⁷ international human rights law and efforts to enforce it have for the most part dealt with the behavior and obligations of governments.

This focus has shifted to some extent in recent years with the gradual recognition that some governments are simply not able to protect those within their jurisdiction from violations of human rights committed by powerful groups within the state. These groups include terrorist and criminal organizations and, in certain countries, the military establishment. The watchword here is impunity, that is, individuals belonging to these groups are able to engage in large-scale violations of human rights while enjoying de facto immunity from prosecution for what in theory at least are criminal acts under the law of the state where these acts take place. ⁴⁸ Potential violators will obviously not be deterred from engaging in massive human rights abuses in these countries if they know that they will enjoy domestic impunity and that, at most, only the state will be held internationally responsible for their acts.

These realities are increasingly forcing the international community to explore ways not only to hold the state responsible, but also to act directly against individuals whom the state is too weak or unwilling to punish. While various principles of international criminal law have in theory at least always permitted the imposition of individual responsibility for international crimes, including some grave violations of international human rights or humanitarian law, no international tribunals with jurisdiction to apply that law existed for decades after the Nürnberg and Tokyo War Crimes Tribunals were dissolved. This situation has changed in the past few years with the establishment by the United Nations of the International Tribunals for the Former Yugoslavia and for Rwanda with jurisdiction over crimes against humanity, genocide, and war crimes committed in those territories. ⁴⁹ The United Nations is now also in the process of establishing a permanent [End Page 718] international criminal court. ⁵⁰ In addition, some international investigatory bodies, such as the United Nations Truth Commission for El Salvador, ⁵¹ while not international tribunals with criminal jurisdiction, are being created in large measure to pierce national veils of impunity and to fix individual responsibility. The international community is also beginning to develop legal doctrines that would bar governments from granting amnesties to gross violators of human rights, a practice that has tended to be imposed on weak governments by military regimes or other powerful groups before turning over power to civilian authorities. ⁵²

These responses to new international realities, while still in a formative stage, suggest that the concept of international responsibility for massive violations of human rights is being expanded to include individuals and groups in addition to governments. If individuals are deemed to have ever greater rights under the international law of human rights, it makes sense to impose corresponding duties on them not to violate those rights and, if appropriate, to hold them internationally responsible for their violation. This approach may in the long run serve as a greater deterrent against human rights violations than the imposition of fines or other economic sanctions against a state whose government may either have been powerless at a given time to prevent violations or came into power subsequent to their commission. The international law concepts of state continuity and state responsibility, while valid principles in general, do not always make sense in the human rights context. They may force newly elected governments of impoverished countries to pay compensation for human rights violations committed by their repressive predecessors without giving them the international support, tools, and remedies to make it possible for the guilty individuals to be held internationally responsible for their misdeeds. In the absence of such remedies, a newly established democratic government, with economic resources seriously depleted by an oppressive regime, may be made to pay compensation for the human rights violations committed under that regime while those responsible for the violations live in luxury, frequently abroad, and go unpunished. An effective international system that would hold these individuals personally liable as a matter of international law and bar domestic amnesties granted under duress would go a long way [End Page 719] to deter human rights violations and ensure a more just approach to this entire problem. The fact that the international community is today moving in that direction is a welcome development.

B. Minority Rights

In recent years, we have also seen a renewed interest by the international community in the establishment of international norms and institutions for the protection of the rights of individuals belonging to national, racial, ethnic, linguistic, or religious minorities. Here it is worth recalling that the UN Charter contains a broad nondiscrimination clause but makes no reference to minority rights as such. The same is true of the Universal Declaration of Human Rights, although it proclaims an equal protection clause ⁵³ as well as a nondiscrimination provision that is more extensive in scope than that of the Charter. ⁵⁴ The International Covenant on Civil and Political Rights contains one rather general provision on the subject of minority rights. ⁵⁵ To the extent that the Genocide Convention criminalizes acts designed to eradicate national, ethnic, racial, or religious groups as such, it can be characterized as an instrument for the protection of minority rights, albeit one that is limited in scope. ⁵⁶ On the whole, however, the international community showed relatively little interest during the formative years of the United Nations and other post World War II international and regional organizations in the establishment of international systems for the protection of minority rights. The absence of an appropriate clause on this subject in the UN Charter can be attributed, in part at least, to the opposition of some Eastern and Central European nations. These countries believed that various irredentist movements in the 1930s, which had been encouraged by Nazi Germany and its allies, had their source in the League of Nations minorities system. Whether true or not, the omission of any [End Page 720] reference to minorities in the UN Charter and the Universal Declaration is attributable to these sentiments. ⁵⁷

The break up of the Soviet empire, the inhuman policies of "ethnic cleansing" accompanying the dissolution of the former Yugoslavia, and the threats of similar practices in other parts of the world have again focused international attention on the need for the international protection of minorities. Efforts to lay the normative foundation for a system that would accomplish this objective were initiated in the United Nations with the adoption by the General Assembly of the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. ⁵⁸ The Council of Europe followed with the adoption in 1994 of the Framework Convention for the Protection of National Minorities. ⁵⁹ The Organization on Security and Cooperation in Europe pioneered these measures with the 1990 Copenhagen Concluding Document and a number of later OSCE instruments on the subject, culminating in 1992 with the establishment of the office of the OSCE High Commissioner for National Minorities. ⁶⁰

Considering that we live in a world in which extreme nationalism and various forms of racial, ethnic, and religious intolerance are on the rise, it is safe to predict that efforts to protect minorities will increasingly occupy the attention of the international community and result in greater legislative and institutional activities in this area. We may thus be coming full circle from the minorities system established by the League of Nations, its abandonment by the founders of the United Nations, back to the realization that contemporary international realities require additional international norms and institutions on the subject. [End Page 721]

C. Collective Humanitarian Intervention

The UN Security Council is today also increasingly taking action to deal with large-scale human rights violations by authorizing enforcement measures under the powers that Chapter VII of the UN Charter confers on it. This chapter applies to situations determined by the Security Council to constitute a "threat to the peace, breach of the peace, or act of aggression." ⁶¹ It has been applied by the Security Council in some of its decisions relating to the Kurds in Iraq, Somalia, the former Yugoslavia, and Haiti, among others. While it is still too early to assert that these and related cases have now firmly established the principle that massive violations of human rights without more will be deemed by the Security Council to constitute a sufficient legal basis for action under Chapter VII, it is clear that the Security Council is moving in that direction. ⁶² What we are seeing here is the emergence of a modern version of collective humanitarian intervention that has its basis in the convergence of two important developments: the growing power of the Security Council in the post Cold War era and the increasing willingness of the international community to confront massive violations of human rights with force, if necessary. Only time will tell whether this ultimate weapon of the international community for dealing with truly egregious violations of human rights will in fact be used to advance the cause of human rights rather than some extraneous political objectives, a practice which brought the old doctrine of humanitarian intervention into disrepute.

VI. Conclusion

Over the past fifty years, the individual human being has gradually acquired a growing number of internationally recognized human rights and obligations. Human beings have to this extent become subjects of international law in their own right. This development gives meaning to the proposition that the last half century has witnessed the internationalization of human rights and the humanization of international law. What we have here is a still evolving process that began with the adoption of the UN Charter and continues to this day with the developments described in the preceding pages.

The past fifty years have also seen a vast expansion of the meaning of [End Page 722] international human rights. It began with basic civil and political rights, on the one hand, and economic, social and cultural rights, on the other, and continues to evolve into a greatly enlarged catalogue of new or related rights. Moreover, the international law concept of domestic jurisdiction, which in the past shielded oppressive governments against international condemnation, has become an anachronism devoid of legal significance as far as the promotion of human rights is concerned. One need only compare the contents of the 1948 Universal Declaration of Human Rights with the 1993 Vienna Declaration of Human Rights or the 1995 Beijing Declaration on Women's Issues to recognize the dramatic conceptual changes that have taken place in the international human rights field. It is today also clear that democratic pluralism as a form of government is rapidly becoming a basic principle of the public order to which the international community aspires. What started out as a halfhearted effort to give propagandistic lip service to the concept of human rights has gradually produced a world movement of profound political significance.

Of course, there is still a wide chasm between proclamations of lofty principles and genuine observance of human rights in many parts of the world. That should surprise no one considering the problems many countries face and the obstacles that must be overcome in order to translate international norms into real safeguards against violations of human rights in general and in specific regions in particular. The normative and institutional achievements in the field of human rights should not blind us to the fact that the effective implementation of human rights takes time and vast resources. While it is possible by government fiat to put an end to some violations of human rights, this is not true of other serious abuses endemic to certain societies, regions, or countries. It is undeniable, though, that the international community is taking important steps in the right direction as far as implementation is concerned, and that it has had some notable successes. The end of apartheid, the demise of the Soviet empire, and the process of transition to democracy that has been set in motion, while not attributable exclusively to the human rights revolution, would certainly not have taken place without it.

Recent efforts by the international community to hold individuals, and not only states, internationally criminally responsible for serious human rights violations and the new emphasis on the protection of rights of individuals belonging to minority groups is a welcome development. So too is the role the UN Security Council is beginning to play under Chapter VII of the UN Charter in dealing with massive violations of human rights. Especially important is the involvement of international lending institutions in the task of promoting human rights through economic development. These activities all point to a genuine maturing of the approaches the international community is adopting in the struggle to advance the protection of human rights.

Thomas Buergenthal is the Lobingier Professor of International and Comparative Law, The George Washington University Law School, and a member of the United Nations Human Rights Committee. He is a former President of the Inter-American Court of Human Rights.

Notes

1. For an earlier study of this subject, seeHersch Lauterpacht, International Law and Human Rights 27-47 (1950).

2. U.N. Charter, signed 26 June 1945, 59 Stat. 1031, T.S. 993 (entered into force 24 Oct. 1945); see also Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 Am. U.L. Rev. 1 (1982).

3. Thomas Buergenthal, Human Rights: A Challenge for the Universities, 31 UNESCO Courier 25, 28 (1978).

4. Scholarly efforts to develop an international law of human rights predate the UN Charter by many years. See, e.g., André N. Mandelstam, La Declaration des droits internationaux de l'homme, 5 Rev. de Droit Int'l 59 (1930); James Brown Scott, La Declaration Internationaux des Droits de l'homme, 5 Rev. de Droit Int'l 79 (1930); see also Louis B. Sohn, How American International Lawyers Prepared for the San Francisco Bill of Rights, 89 Am. J. Int'l L. 540 (1995); Jan Herman Burgers, The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century, 14 Hum. Rts. Q. 447 (1992); Paul Gordon Laurens, The Evolution of International Human Rights: Visions Seen (forthcoming 1998). For a summary of the historical antecedents of modern international human rights law, see Thomas Buergenthal, International Human Rights in a Nutshell 1-20 (2d ed. 1995).

5. There is vast literature on this subject. See, e.g.,The United Nations and Human Rights: A Critical Appraisal (Philip Alston ed., 1992) [hereinafter A Critical Appraisal]; Rudolf Bernhadt & John Anthony Jolowicz,International Enforcement of Human Rights (1987); Buergenthal, supra note 4; 1 & 2 Hector Gros Espiell, Estudios Sobre Derechos Humanos (1985 & 1988); Louis Henkin, The Age of Rights (1990); Theodor Meron, Human Rights Law-Making in the United Nations (1986).

6. See generallyPedro Nikken, La Proteccion Internacional de los Derechos Humanos: Su Desarrollo Progresivo (1987).

7. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966); International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, 993 U.N.T.S. 3 (entered into force 3 Jan. 1976), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc.
A/6316 (1966).

8. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),
3 U.N. GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 Am. J. Int'l L. Supp. 127 (1949).

9. Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277 (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989).

10. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969).

11. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953).

12. American Declaration on the Rights and Duties of Man, signed 2 May 1948, O.A.S. Off. Rec. OEA/Ser.L/V/II.23, doc. 21, rev. 6 (English 1979).

13. Convention against Discrimination in Education, adopted 14 Dec. 1960, 429 U.N.T.S. 93 (entered into force 22 May 1962), reprinted inRichard B. Lillich, International Human Rights Instruments 330.1 (1990).

14. Convention Concerning Discrimination in Respect of Employment and Occupation (ILO No. 111), adopted 25 June 1958, 362 U.N.T.S. 32 (entered into force 15 June 1960), reprinted inRichard B. Lillich, International Human Rights Instruments 320.1 (1990).

15. Although Article 2(7) of the Charter, which deals with non-intervention in matters that are essentially within the domestic jurisdiction of states, was frequently invoked in the early days of the UN by some states seeking to limit UN discussion of human rights cases, this provision has gradually faded away as a major obstacle to UN consideration of human rights issues. SeeHenkin,supra note 5, at 51; see also Felix Ermacora, Human Rights and Domestic Jurisdiction (Art. 2(7) of the Charter), 124 Rec. d. Cours 371 (1968); Thomas Buergenthal, Domestic Jurisdiction, Intervention, and Human Rights: The International Law Perspective, inIII Human Rights and U.S. Foreign Policy: Principles and Applications (Peter G. Brown & Douglas MacLean eds., 1979).

16. As early as 1941, President Franklin D. Roosevelt, in his famous "Four Freedoms" speech, called for "a world founded upon four essential freedoms." These he identified as freedom of speech and expression, freedom for every person to worship God in his own way, freedom from want, and freedom from fear. Roosevelt's vision of "the moral order," as he characterized it, became the clarion call of the nations that fought the Axis in the Second World War. See Address by the President, 87 Cong. Rec. 44, 46-47 (1941), reprinted in 6 Hum. Rts. Q. 384 (1984); Arthur N. Holcombe, Human Rights in the Modern World 4-5 (1948); Louis B. Sohn, The Human Rights Movement: From Roosevelt's Four Freedoms to the Interdependence of Peace, Development and Human Rights (Harvard Law School Human Rights Program, Edward A. Smith Lecture, 1995).

17. The United States still had de jure racial discrimination, the Soviet Union its Gulag, and France and the United Kingdom their colonies.

18. See Paul Gordon Lauren, First Principles of Racial Equality: History and the Politics and Diplomacy of Human Rights Provisions in the United Nations Charter, 5 Hum. Rts. Q. 1 (1983).

19. For the drafting history of these provisions, seeJacob Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary 17-50 (1946); Louis B. Sohn, A Short History of United Nations Documents on Human Rights, inThe United Nations and Human Rights 39, 43-59 (18th Report of the Comm'n to Study the Organization of Peace, 1968).

20. U.N. Charter, supra note 2 art. 56

21. For the relevant UN practice under articles 55(c) and 56, seeThe Charter of the United Nations: A Commentary 776-95 (Bruno Simma ed., 1994); see alsoJean-Pierre Cot & Alain Pellet, La Charte des Nations Unies 865-93 (2d ed. 1991); Hurst Hannum, Human Rights, inI United Nations Legal Order 319 (Oscar Schachter & Christopher C. Joyner eds., 1995).

22. Universal Declaration of Human Rights, supra note 8.

23. For the different theories that explain the normative status of the Universal Declaration, see Sohn, supra note 2, at 16-17; Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12 Austl. Y.B. Int'l L. 82 (1992); Buergenthal, supra note 4, at 33.

24. The International Bill of Rights consists of the Universal Declaration of Human Rights and of the International Covenants on Human Rights. See generallyBuergenthal, supra note 4, at 28-57.

25. U.N. Charter, supra note 2.

26. See generallyLouis B. Sohn, Rights in Conflict: The United Nations and South Africa (1994).

27. ESC Res. 1235 (XLII) (1967), reprinted in part inHenry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals 389 (1996) [hereinafter Human Rights in Context].

28. ESC Res. 1503 (XLVIII) (1970), reprinted in part inHuman Rights in Context, supra note 27, at 377. For the legislative history of these instruments, see Louis B. Sohn & Thomas Buergenthal, International Protection of Human Rights 746-855 (1973).

29. SeeHoward B. Tolley, Jr., The U.N. Commission on Human Rights (1987); Philip Alston, The Commission on Human Rights, inA Critical Appraisal, supra note 5, at 126, 138; Asborjn Eide, The Sub-Commission on Prevention of Discrimination and Protection of Minorities, inA Critical Appraisal, supra note 5, at 211.

30. SeeDominic McGoldrick, The Human Rights Committee (1991); Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (1993).

31. See generally Karl Josef Partsch, The Committee on the Elimination of Racial Discrimination, inA Critical Appraisal, supra note 5, at 339.

32. American Convention on Human Rights, opened for signature 22 Nov. 1969, O.A.S.T.S. No. 36, reprinted in 9 I.L.M. 673 (1970) (entered into force 18 July 1978). Although it is true that an Inter-American Commission on Human Rights was established by the Organization of American States in 1960, that body did not begin to play a significant role until the mid to late-1960s. See Thomas Buergenthal, The Inter-American System for the Protection of Human Rights, inII Human Rights in International Law: Legal and Policy Issues 439 (Theodor Meron ed., 1984); Buergenthal, supra note 4, at 181-86.

33. On the European Convention of Human Rights, see generallyJochen A. Frowein & Wolfgang Peukert, Europäische MenschenRechtsKonvention: EMRK-Kommentar (2d ed. 1996); The European System for the Protection of Human Rights (R.St.J. Macdonald et al. eds., 1993). See alsoJ.G. Merrills, The Development of International Law by the European Court of Human Rights (2d ed. 1993).

34. UNESCO 104 EX/Decision (1978). On this subject, see Philip Alston, UNESCO's Procedure for Dealing with Human Rights Violations, 20 Santa Clara L. Rev. 665 (1980).

35. See generally Francis Wolf, Human Rights and the International Labour Organisation, inII Human Rights in International Law: Legal and Policy Issues 273 (Theodor Meron ed., 1984).

36. See Cees Flinterman & Evelyn Ankumah, The African Charter on Human and Peoples' Rights, inGuide to International Human Rights Practice 152 (Hurst Hannum ed., 2d ed. 1992); U.O. Umozurike, Six Years of the African Commission on Human and Peoples' Rights, inRecht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt 635 (Ulrich Beyerlin et al. eds., 1995); Claude E. Welch, Jr., Human Rights and African Women: A Comparison of Protection Under Two Major Treaties, 15 Hum. Rts. Q. 549 (1993); Burns H. Weston et al., Regional Human Rights Regimes: A Comparison and Appraisal, 20 Vand. J. Transnat'l L. 585 (1987).

37. SeeBuergenthal, supra note 4, at 318-26; Howard B. Tolley, Jr., The International Com-mission of Jurists: Global Advocates for Human Rights (1994).

38. For a most useful assessment of this subject within the UN framework, see the individual articles on different UN institutions in A Critical Appraisal, supra note 5.

39. SeeVienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22nd plen. mtg., U.N. Doc. A/CONF.157/24 (Part I) (1993) ¶ 18 [hereinafter Vienna Declaration]; see also Antonio Cançado Trindade, Memoria da Conferencia Mundial de Direitos Humanos(Viena, 1993), Boletim da Sociedade Brasileira de Direito Internacional, Nos. 87/90 (1993), at 9.

40. Vienna Declaration, supra note 39. The Fourth (Beijing) World Conference on Women adopted even stronger language on this subject. Fourth World Conference on Women: Beijing Declarationand Platform for Action, U.N. Doc. A/CONF.177/20 (1995), reprinted inReport of the Fourth World Conference on Women (1995). Id. at Annex II, ¶ 9.

41. Vienna Declaration, supra note 39 ¶ 8.

42. See Thomas Buergenthal, The CSCE Rights System, 25 Geo. Wash. J. Int'l L. & Econ. 333, 355-56 (1991); Thomas Buergenthal, The Copenhagen CSCE Meeting: A New Public Order for Europe, 11 Hum. Rts. L.J. 217 (1990).

43. See generally Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int'l L. 46 (1992).

44. See Menno T. Kamminga, Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?, 12 Neth. Q. Hum. Rts. 153 (1994).

45. See, e.g., Velasquez Rodriguez v. Honduras (Merits), Case 7920, Inter-Am. C.H.R. 35, OEA/Ser.L./V./III.19, doc. 13 (1988). See also Dinah Shelton, The Jurisprudence of the Inter-American Court of Human Rights, 10 Am. U. J. Int'l L. & Pol'y 333 (1994); Reed Brody & Felipe Gonzalez, Nunca Más: An Analysis of International Instruments on "Disappearances," 19 Hum. Rts. Q. 365 (1997).

46. See generallyThomas Buergenthal & Dinah Shelton, Protecting Human Rights in the Americas: Cases and Materials (4th ed. 1995).

47. See generally Yoram Dinstein, International Humanitarian Law, in International Human Rights Law: Theory and Practice 203 (Irwin Cotler & F. Pearl Eliadis eds., 1992); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (1992); Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int'l L. 78 (1994); Payam Akhavan, The Yugoslav Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond, 18 Hum. Rts. Q. 259 (1996); Payam Akhavan, Punishing War Crimes in the Former Yugoslavia: A Critical Juncture for the New World Order, 15 Hum. Rts. Q. 262 (1993).

48. SeeImpunity and Human Rights in International Law and Practice (Naomi Roht-Arriaza ed., 1995); Juan E. Méndez, Accountability for Past Abuses, 19 Hum. Rts. Q. 255 (1997).

49. See Theodor Meron, International Criminalization of Internal Atrocities, 89 Am. J. Int'l L. 554 (1995).

50. See Committee on International Law & Committee on International Human Rights, Report on the Proposed International Criminal Court, 52 The Rec. of the Ass'n of the Bar of the City of N.Y. (1997).

51. See Thomas Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vand. J. Transnat'l L. 497 (1994). See generally Jo M. Pesqualucci, The Whole Truth and Nothing But the Truth: Truth Commissions, Impunity and the Inter-American Human Rights System, 12 B.U. Int'l L.J. 321 (1994).

52. A number of decisions of the Inter-American Commission on Human Rights point in that direction. For some of these cases, seeBuergenthal & Shelton, supra note 46, at 560-74.

53. Universal Declaration of Human Rights, supra note 8 art. 7.

54. Compare Article 2 of the Universal Declaration of Human Rights with Articles 1(3) and 55(c) of the UN Charter.

55. See International Covenant on Civil and Political Rights, supra note 7 art. 27 ("In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."). For an analysis of this provision, see Louis B. Sohn, The Rights of Minorities, inThe International Bill of Rights: The Covenant on Civil and Political Rights 270 (Louis Henkin ed., 1981).

56. See Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 Int'l & Comp. L.Q. 102, 105 (1976).

57. SeeLauterpacht, supra note 1, at 424; Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights 56-57 (1990).

58. See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, G.A. Res. 47/135 (18 Dec. 1992), reprinted in part in Human Rights in Context, supra note 27, at 1001-03. See generally Patrick Thornberry, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis and Observations, inThe UN Minority Rights Declaration 11 (Alan Phillips & Allan Rosas eds., 1993).

59. Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 Hum. Rts. L.J. 98 (1995). See Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities, 16 Hum. Rts. L.J. 92 (1995); see also Daniel Thürer, Region und Minderheitenschutz--Aufbauelemente einer europäischen Architektur?, in Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf, supra note 36, at 1337.

60. See Diana Chigas, Bridging the Gap Between Theory and Practice: The CSCE High Commissioner on National Minorities, 5 Helsinki Monitor 27 (1994); Foundation on Inter-Ethnic Relations, The Role of the High Commissioner on National Minorities in OSCE Conflict Prevention (1997).

61. U.N. Charter, supra note 2 art. 39.

62. See Jost Delbrück, A More Effective International Law or a New "World Law"?--Some Aspects of the Development of International Law in a Changing International System, 68 Ind. L.J. 705, 707-11 (1993); Rosalyn Higgins, Problems and Process: International Law and How We Use It 254-56 (1994).

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