From Concept to Convention:
How Human Rights Law Evolves

In 1945 in San Francisco, 50 nations adopted the United Nations Charter, a document setting forth the United Nations’ goals, functions, and responsibilities. Article 1 of the Charter states that one of the aims of the UN is to achieve international cooperation in "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion."

The goals of Article 1 of the Charter are of a general nature. For those goals to be achieved, specific "human rights and freedoms" needed to be defined first. Then laws and procedures had to be drawn up that would promote and protect those rights and freedoms. For these purposes, the Commission on Human Rights was established and charged with creating an International Bill of Human Rights.

From Declaration to Convention

The International Bill of Human Rights consists of the Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights and its optional Protocol, and The International Covenant on Economic, Social, and Cultural Rights.

First in 1948 came the UDHR, which serves to define the basic human rights and freedoms to which all individuals are entitled. A declaration is not a legally binding document, however. For the rights defined in a declaration to have full legal force, they must be written into documents called conventions (also referred to as treaties or covenants), which set international norms and standards. When a government signs a convention, it becomes legally bound to uphold those standards.

Once the UDHR was drafted and adopted by the UN General Assembly, work began to codify the rights it contained into a convention. For political and procedural reasons, these rights were divided between two separate covenants, each addressing different categories of rights. The International Covenant on Civil and Political Rights (ICCPR) articulates the specific, liberty-oriented rights that a state may not take from its citizens, such as freedom of expression and freedom of movement. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) addresses those articles in the UDHR that define an individual’s rights to basic necessities, such as food, housing, and health care, which a state should provide for its citizens, in so far as it is able. Both covenants were adopted by the UN in 1966.

Reporting and Monitoring

Every convention contains articles that establish procedures for monitoring and reporting how states parties, governments that have ratified the document, are complying with it. Both Covenants, for example, provide for a body of independent experts to monitor governmental compliance with treaty provisions. Articles in the ICCPR establish a Human Rights Committee consisting of 18 independent experts, who examine progress reports from states that are party to that Covenant. The Committee also can consider complaints of one member state against another. In addition, the ICCPR provides a complaint procedure through which individuals can have grievances against their government heard in an international forum.

When a UN member state ratifies a convention, it agrees to abide by the provisions of the convention, consent to be monitored, change its laws to conform to the convention, and report at regular intervals on its progress in doing so. Relevant parts of these reports are also forwarded to the specialized UN-affiliated intergovernmental organizations such as the World Health Organization (WHO) and the International Labor Organization (ILO) for their review and recommendations.

 

Steps in the Evolution of Conventions

Before they become codified as binding law, human rights concepts must pass through a lengthy process that involves consensus building and practical politics at the international and national levels.

1) Drafted by working groups. The UN General Assembly commissions working groups consisting of representatives of UN member states, as well as representatives of intergovernmental and nongovernmental organizations (NGOs).

2) Adopted by vote of the UN General Assembly.

3) Signed by member states. When member states sign the convention, they are indicating that they have begun the process required by their government for ratification. In signing, they are also agreeing to refrain from acts that would be contrary to the objectives of the convention.

4) Ratified by member states. When a member state ratifies a convention, it signifies its intention to comply with the specific provisions and obligations of the document. It takes on the responsibility to see that its national laws are in agreement with the convention. There is also a process by which states can ratify the convention, but also indicate their reservations about specific articles.

5) Entered into force. A convention goes into effect when a certain number of member states have ratified it. For example, the ICCPR and ICESCR were adopted in 1966; however, they did not enter into force until 1976 when the specified number of 35 member states had ratified them.

 

The US Ratification Process

In the United States the process towards ratification begins when the President endorses the document by signing it. It is then submitted to the Senate, along with any administration recommendations. The Senate Foreign Relations Committee first considers the convention, conducting hearings to monitor public reaction. The Foreign Relations Committee may then recommend the convention to the Senate, possibly with reservations or qualifications. Such reservations are often based on the need to enact new legislation in order to conform to a convention. However, the federal system of the US government gives individual states, not the national government, the right to make law in many areas such as criminal and family law.

Next the full Senate considers the convention. Finally, if the Senate approves the convention, the President formally notifies the UN that the United States has ratified and thus become a states party to the convention.

The Convention on the Rights of the Child provides an example of the evolution of a UN Convention. In 1959 a working group drafted the Declaration on the Rights of the Child, which consisted of ten principles setting forth basic rights to which all children should be entitled.

 

The Rights of the Child from Declaration to Convention

These principles then needed to be codified in a convention. The formal drafting process lasted nine years, during which representatives of governments, intergovernmental agencies, like UNICEF and UNESCO, and nongovernmental organizations (NGOs), like Save the Children and the International Red Cross, worked together to create consensus on the language of the convention.

The resulting Convention on the Rights of the Child (Children’s Convention) contains 54 articles that can be divided into three general categories: 1) protection, covering specific issues such as abuse, neglect, and exploitation; 2) provision, addressing a child’s particular needs such as education and health care; and 3) participation, acknowledging a child’s growing capacity to make decisions and play a part in society.

The Children’s Convention was adopted by the General Assembly in 1989 and was immediately signed and ratified by more nations in a shorter period of time than any other UN convention. As a result the Children’s Convention entered into force shortly thereafter, in 1990. Furthermore, the total number of member states which have ratified the Children’s Convention has surpassed that of all other conventions.

As of December 1998, only two member states have not ratified it: Somalia and the United States.

 

The Evolution of Human Rights Law

Since 1948 the UDHR has served as the foundation for 20 major human rights conventions. Many human rights conventions have entered into force; some are still in the process of ratification. Others, such as a convention on the rights of indigenous peoples and a convention on environmental rights, are presently being drafted. As the needs of certain groups of people are recognized and defined and as world events point to the need for awareness and action on specific human rights issues, international human rights law continuously evolves in response.

The ultimate goal is to protect and promote the basic human rights of every person, everywhere.

Sources: Hurst Hannum, Guide to International Human Rights Practice; Leah Levin, Human Rights Questions and Answers; Frank Newman and David Weissbrodt, International Human Rights: Law, Policy, and Process.

 

Injustice anywhere is a threat to justice everywhere

-Martin Luther King