The Emergence of International Human Rights
Hersch Lauterpacht - shift of the center of
gravity of international law from sovereignty to
human rights (1950)?
Lauterpacht on mid-twentieth century ethical
challenges to IL and human rights…
”the direct subjection of the individual to the
rule of IL is an essential condition of the
strenghtening of the ethical basis of IL and of its
effectiveness in a period of history in which the
destructive potentialities of science and the
power of the machinery of the State threaten
the very existence of civilized life.”
Lauterpacht on State Sovereignty and International
Human Rights…
”It is the sovereign State, with its claim to exclusive allegiance and
its pretensions to exclusive usefulness that interposes itself as an
impenetrable barrier between the individual and the greater
society of all humanity…the recognition of the individual, by dint of
the acknowledgment of his fundamental rights and freedoms, as
the ultimate subject of international law, is a challenge to the
doctrine which in reserving that quality exclusively to the State
tends to a personification of the State as a being distinct from the
individuals who compose it, with all that such personification
implies…International law, which has excelled in punctilious
insistence on the respect owed by one sovereign State to another,
henceforth acknowledges the sovereignty of man. For fundamental
human rights are rights superior to the law of the sovereign
state.”
Lauterpacht on Changes in the subjects of IL…
”the recognition of the individual as a subject of
international rights, the acknowledgment of the
worth of human personality as the result of the
denial of fundamental human rights; and the
increased attention paid to those already
substantial developments in IL in which,
notwithstanding the traditional dogma, the
individual is in fact treated as a subject of
international rights.”
Lauterpacht on the paradox of International
Human Rights as superior to the law of the State
”There is one objection to the notion of natural rights which,
far from invalidating the essential idea of natural rights, is
nevertheless in a sense unanswerable. It is a criticism which
reveals a close and, indeed, inescapable connexion between
the idea of fundamental rights on the one hand and the law of
nature and the law of nations on the other. That criticism is to
the effect that, in the last resort, such rights are subject to
the will of the State: that they may – and must – be regulated,
modified, and if need be taken away by legislation and,
possibly, by judicial interpretation; that, therefore, these
rights are in essence a revocable part of the positive law of a
sanctity and permanence no higher than the constitution of
the State either as enacted or as interpreted by courts and by
subsequent legislation.”
Hannah Arendt’s 1950 Critique of
International Human Rights
Arendt’s Critique of International
Human Rights
”No paradox of contemporary politics is filled with a more
poignant irony than the discrepancy between the efforts
of well-meaning idealists who stubbornly insist on
regarding as ”inalienable” those human rights, which are
enjoyed only by citizens of the most prosperous and
civilized countries, and the situation of the rightless
themselves. Their situation has deteriorated just as
stubbornly, until the internment camp – prior to the
second World War the exception rather than the rule for
the stateless – has become the routine solution for the
problem of domicile for the ’displaced persons.’”
Lauterpacht and Arendt on…Citizen
Rights and International Human Rights
• Both Lauterpacht and Arendt note the clear and
fundamental distinction between the rights of the citizen
that dominated modern revolutions and the emergence in
mid-twentieth century of ”human rights” proper.
• The rights of the citizen is predicated on the construction of
spaces of citizenship in which rights were accorded and
protected in a particular political community.
• Inherent in the notion of human rights is the transcendence
of political community, state and nation. The central events
picked up by Lauterpacht is the recasting of rights as
entitlements that might contradict the sovereign nationstate from above and outside rather than serve as its
foundation. Arendt stresses the problems and pitfalls of
this project.
No break-through of International Human Rights
in the 1950s despite of the UDHR
• Long into the twentieth
century, the link between
rights and the nation-state
remained relatively
untroubled, despite of some
early voices to the contrary.
• Decolonization struggles
NOT Human Rights
struggles but quests for
national self-determination.
The rise of International Human Rights
in the 1970s
Explanations for the rise of International Human
Rights in the 1970s
• A move from rights as a politics of the state to the
morality of the globe. A move that had failed to
materialize in the early- and mid-twentieth century.
• Human rights became a moral alternative to bankrupt
political utopias.
• The last utopia – one that became powerful and
prominent because other visions imploded (Moyn).
• Human rights are only a particular modern version of
the ancient commitment to the cause for justice - The
Human Rights movement!
The Human Rights Movement
”The international human rights movement is made up of
men and women who gather information on rights
abuses, lawyers and other who advocate for the
protection of rights, medical personnel who specialize in
the treatment and care of victims, and the much larger
number of persons who support these efforts financially
and, often, by such means as circulating human rights
information, writing letters, taking part in
demonstrations, and forming, joining, and managing
rights organizations. They are united by their
commitment to promote fundamental human rights for
all, everywhere.” (Aryeh Neier)
I. Has the positivization of IL and the expansion of
human rights institutions overcome the human rights
paradox noted by Lauterpacht and Arendt in the
1950s?
• Positivization of Human Rights
through ICCPR (1976) and
ICESCR (1976), European
Convention of Human Rights
(1953), the American
Convention on Human Rights
(1978) The African Charter on
Humans and People’s Rights
(1986) means that the we’ve
overcome ”the fundamental
and decisive ethical flaw”
(Lauterpacht) of the UDHR in
placing no duties or
obligations on states.
II. Has the positivization of IL and contemporary human rights
institutions overcome the human rights paradox noted by
Lauterpacht and Arendt in the 1950s?
• Progressive development of the
supranational enforcement of
human rights:
– UN human rights system (universal
applicability)
• UN Chater-based bodies such as
the Human Rights Council
• UN treaty-based bodies such as
the Human Rights comittee
– Regional arrangements
• European Council and Eurpean
Court of Human Rights
• Inter-American Commission and
Court of Human Rights
• African Commission and Court on
Human and People’s Rights
III. Has the positivization of IL and contemporary human rights
institutions overcome the human rights paradox noted by
Lauterpacht and Arendt in the 1950s?
• Even if there are human rights norms binding on states they would appear
to be based on the trinity of state-population-territory, and the force of
obligation decreases with the distance to each of these determinants.
Despite of incessant claims to universality and inalienability of human
rights the question of ”jurisdiction” still looms large (Noll).
• Human rights must come from within the state. States remain the ultimate
power holders, legislators and implementing agents of human rights. Thus,
Human Rights disintegrate into a multitute of singular legal obligations,
subject to
– questions of state responsibility such as if a violation is attributable to a state?
– questions of treaty law such as if a state is bound by the specific human rights
obligation violated? Are there any valid reservations? Derogations in
Emergency situations. Interaction with other state obligations?
– Interpretation and application in particular cases by state authorities,
– Admissibility and forum considerations, is there a Court or quasi-judicial body
in which human rights can be claimed when states fails to properly implement
them?
IV. Has the positivization of IL and contemporary human
rights institutions overcome the human rights paradox
noted by Lauterpacht and Arendt in the 1950s?
• International Human Rights have Developed Significantly and
human rights remain an important – perhaps presently THE call for
global justice.
• Yet, the paradox remains…Human rights are both always and never
universal. The movement assert that fundamental rights belong to
everyone, no matter who they are and regardless of context or
extenuating circumstance. Yet people can only realize their right by
asserting them in particular places and attending to specific
contexts of struggle, alliance and conflict. (Stern & Straus 2014)
• International Human rights is not the end of history as far as global
justice is concerned: an at times promising, yet complex, and
unfinished struggle, frought with difficulties and problems.
• Not a dissuasion but a plea for the study of international human
rights!