On the Phylum and Logic of Human Rights

Dino Kritsiotis is Chair of Public International Law in the University of Nottingham, where he heads the International Humanitarian Law Unit of the Human Rights Law Centre (established in November 2012).

The question of the existence of a ‘general’ international human rights law suggests a discrete system of traditions, practices and routines that have taken form following the ‘heuristic references’ to human rights found in the Charter of the United Nations (Crawford, Brownlie’s Principles of Public International Law, 8th ed., 2012, p. 234). The idea of this exercise seems to be to extract the operating principles or systemic themes of this ‘specialist regime’ (Chinkin ‘Sources’, in International Human Rights Law, 2nd ed., 2014, p. 75),  even though this regime has evidently taken root ‘within general public international law’ (ibid.). It is thus because of this older, overarching system that human rights law possesses normative authority at the international level, though some have argued that its relationship with/in the discipline of public international law may now need to be reconfigured or rethought (for example, in introducing his International Human Rights Law: Cases, Materials and Commentary, 2nd ed., 2014, De Schutter considers that ‘the colonization of international law by human rights perfectly illustrates the formation of a “self-contained regime” (at p. 1)).

Perhaps it is important at this point to identify the level of our analysis. We are not concerned here with a functional assessment of how ‘human rights’ may or may not have been protected by public international law before their official conceptualization after World War II. Such an analysis was instructively undertaken by Brownlie for environmental protection in the Natural Resources Journal (1973), Vol. 13, pp. 179-189, where he concluded that ‘[t]hough the position may soon change, general international law (or customary law) contains no rules or standards related to the protection of the environment as such’ (p. 179; my emphasis). He went on nevertheless to specify how three aspects of the lex lata of that time had ‘major relevance’ for the realization of environmental protection: the rules relating to State responsibility; the territorial sovereignty of States and, finally, the concept of the freedom of the seas. If we were to attempt a similar exercise for human rights, we would presumably find that (general) public international law did aim towards the protection of human rights before they were known eo nomine as it were. We would find that the rules on State responsibility yielded their own dividends for human rights protection through the  notion of diplomatic protection, as well as the fact that, for the most part, the territorial sovereignty of States rejected assertions of male captus bene detentus. Furthermore, under the jus ad bellum, Oppenheim’s treatise on international law adverted to the number of jurists who believed that intervention ‘even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in time of peace and war’ (Vol. I, 2nd ed., §137). The Martens Clause, too, instructed High Contracting Parties of the 1899 Hague Convention (II) on the Laws and Customs of War on Land that populations and belligerents stood to benefit from the protections offered by ‘the laws of humanity’ (amongst other things).

Against such functional assessments, we can imagine the possibilities of the technical identification of this ‘general’ international human rights law—of what it is and how it may have come to ‘colonize’ aspects (perhaps even the greater cohort) of public international law. Reflecting back on Simma and Alston’s seminal article on ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, AYbIL (1988-1989), Vol. 12, pp. 82-108, it is striking to observe how, for the most part, the analysis of that article is organized around a series of disciplinary narratives (e.g. the dichotomization of conventional and customary arrangements, the focus on ‘inter-State relations’ (p. 87)). And, from here, the context of human rights becomes the occasion for developing alternative approaches toward their ultimate realization (at pp. 100-101: ‘there are strong grounds for arguing that States Parties to the Charter [of the United Nations], having in good faith undertaken treaty obligations to respect “human rights”, are subsequently bound to accept, for the purposes of interpreting their treaty obligations, the definition of “human rights” which has evolved over time on the basis of the virtually unanimous practice of the relevant organs of the United Nations’; at p. 102: ‘[general] [p]rinciples brought to the fore in this “direct” way … would (and should) then percolate down into domestic fora, instead of being elevated from the domestic level to that of international law by way of analogy’). Accordingly, methodologies on human rights must therefore work from within existing structures and realities; it is through ‘trojan’ strategies of assertion and influence that change will be brought to bear upon public international law as a whole and inform how it is to be used and put to use in practice, all in the name of the realization of human rights.

Time and again, we are thus reminded of the system of public international law to which human rights in fact belong and from whose cloth they are actually cut:

‘[h]uman rights are not a distinct species, still less a phylum. They are, first of all, treaties negotiated and entered into by [S]tates which oblige states parties as to their treatment of people, including their own nationals. While in this and other ways expanding the scope of international law, they are also and as such part of the system of international law’ (Brownlie’s Principles of Public International Law, pp. 634-635).

That said, one must begin to wonder whether the very idea of human rights generally foretold had begun to orchestrate its own idiosyncratic logic in discernible and subliminal ways on the system and structures of public international law before they were legislated into being in their own terms. In the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide advisory opinion (1951), the International Court of Justice seized on the ‘purely humanitarian and civilizing purpose’ of the Genocide Convention in order to fashion a ‘limit’ to ‘both the freedom of making reservations and that of objecting to them’—the basis of the modern and general law on reservations (Art. 19 (c) VCLT). Also in terms of the VCLT, ‘provisions relating to the protection of the human person contained in treaties of a humanitarian character’ demarcate an important parameter for material breach and reprisal action ‘against persons protected by such treaties’ (Art. 60 (5)), even though these mechanisms might be regarded as general methods for assuring or securing the conventional commitments of States . See, additionally, Brilmayer, ‘From “Contract” to “Pledge”: The Structure of International Human Rights Agreements’, BYbIL (2006), Vol. 77, pp. 163-202.

Then again, A.W.B. Simpson has advised us to regard the Genocide Convention as ‘belong[ing] to international penal law, not to the international law of human rights’ (BYbIL (2002), Vol. 73, pp. 5-64), so that it might be worth pausing for a while, taking stock, and asking the prior question to this set of enquiries—of what precisely it is we talk about when we talk about human rights? In other words, what set of predispositions, assumptions and considerations entitle us to carve out ‘human rights’ as a fully-fledged ‘fragment’ or epistemic unit of investigation, and might these human rights be symptomatic of a broader set of currents or ‘humanitarian’ logic operating within the system of public international law?