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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 SubCommission 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.