The Normative and Institutional Evolution of International Human Rights

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 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.

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...