From Declarations to Treaties: Human Rights in International Law Context
Human rights laws grew under the same premise that allowed for peaceful coexistence and equitable sharing of global resources. In other words, the world community relied on bilateral and multilateral treaties and agreements to promote the protection of human rights. Historically however, not all treaties necessarily grew out of collective recognition of the value of a moral principle. Many treaties existed before the emergence of shared values that brings people of different background together. Throughout history, and even in the dark ages, we read of communities of different ideologies establish viable covenants and treaties in order to establish peace and share resources. Treaties governing the use of rivers, seas and lakes for instance were established throughout history. Nowadays, treaties governing air traffic between even antagonistic governments are signed by people of different—if not competing—interests. Even in the early Islamic civilization, and upon moving to Madinah, the Prophet Muhammad signed a treaty that established the code by which he and his followers would live side by side with people who did not agree or follow his message. That document known as the Madinah Charter was the basis of defining citizenship in the new Islamic state which included non-Muslims. Similarly, and around the same time, he also established another interesting treaty that can hardly be considered emerging out of shared values: the Hudaybiyyah treaty, a translation of which is quoted below:
In Your Name, О God
This is the treaty in which Muhammad, son of Abdullah, has reached with Sohayl Ibn Amr.
1. There shall be no war between the contracting parties for ten years.
2. During this period, every person belonging to the two signatories shall be safe and secure, with none raising а sword against the other.
3. If any person from among the Quraysh goes to Madinah he shall be sent back, but if any Muslim goes to Mecca, he shall not be sent back.
4. Tribes of Arabia are free to enter into this treaty on the side of either of the two parties.
5. Muslims shall return to Madinah at the present time and come back next year during the time of pilgrimage, but they shall not stay in Mecca for more than three days.
6. They shall not come back armed and shall bring with them swords only, but these shall be sheathed and the scabbards kept in bags.
These kinds of treaties did play a major role in establishing peace and protecting the interests of minorities in many instances. However these treaties were dictated by the need to compromise in order to guarantee the survival of the collective. They did not necessarily emerge out of sheer conviction of the wisdom of intolerance or the virtue of the service of others. Human rights treaties on the other hand, are indeed a testament of the maturity of mankind. One good example of such human rights protection mechanisms is the first multilateral treaties—if not the first—and that is the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.
The conference of the sixteen nations that originally signed the above convention took place thanks to the efforts of the founder of the private humanitarian organization known as the International Committee of the Red Cross (ICRC): J. Henri Dunant. Dunant, who just witnessed first hand the battle of Solferino, northern Italy that took place in 1859 and resulted in over 40,000 dead or wounded was very moved and decided to act. Horrified by the anguished cries of the war-wounded left to suffer and die on the battlefield, Dunant organized help from the nearest village, Solferino. The wounded, from both sides were taken to makeshift hospitals in people's homes and barns. After the war, Dunant returned to Geneva where he published his account of the battle “A Memory of Solferino”, urging people to found voluntary relief societies to deal with the hardships of war. It is believed that it was his book that led to the foundation of the ICRC, with the assistance of four Geneva businessmen, in 1863.
The convention’s signatories opened the door for the ICRC and its affiliated national societies to become neutral intermediaries. Immediately on ratification of the treaty, the national Red Cross societies began to mushroom and increase in number. That growth could not have happened at a better time: their assistance was immediately needed during the 1864 Prussian-Danish War, the Austro-Prussian War of 1866, and the Franco-Prussian War 1870-1871. Their performance in the battlefields inspired other communities to establish similar neutral organizations to perform this humane task. Clara Barton who witnessed the European wars and saw the performance of the ICRC societies for instance, returned to the US and immediately established the American Association of the Red Cross and urged the administration to sign the Geneva Convention. Following the Russo-Turkish War of 1877-1878, not only that the ICRC was called upon to assist the warring parties care for the wounded and mediate other matters, but their presence and service inspired the creation of the Ottoman Red Crescent Society as well.
Admittedly, it can be argued that the original red cross convention had set in motion a series of other events that led to the establishment of other treaties providing further international legal protection for the rights of victims of wars, to be recognized in subsequent years and in different parts of the world as Humanitarian law, Red Cross law, or human rights law in armed conflicts. Unlike previous treaties known as the “laws of war” that focused on establishing the rules of engagement and the kind of weapons used; the new form of law that was sponsored and promoted by these Red Cross societies focused on people. The 1899 Hague Peace Conference that brought all kinds of countries from the five continents for instance, publicly declared themselves to be committed to the “laws of humanity and the requirement of public conscience.” The Convention they adopted, known as the Convention of the Laws and Customs of War on Land, explicitly mentioned the rights of the wounded to receive treatment, the right of prisoners of war, and the rights of civilians.
In summary, the massive suffering that Europe went through brought about the need to change collectively in the way the victims of violence in general are being treated. Every treaty between two or more nations contributed to the collective achievement that goes beyond the national boundaries. As early as the first of World Wars, nations were convinced of the need to found an international body that will help administer and warehouse treaties. First there was the League of Nations, and finally there emerged the United Nations organizations. It is at these stages that we can talk of empowering the achievements in the domain of human rights law. The twentieth century brought with it a huge achieve of treaties that were reached via a number of means. It is necessary that we briefly explain the origins and kinds of treaties that exited before we talk about the emerging international law. It must be mentioned also that declarations and proclamations, even if states were to sign them, are not considered legally binding documents. They must be adopted as treaties or conventions for them to be legally binding. The process of establishing a legally binding treaty however, may vary depending on the nature of the matter that needed to be resolved.
The most efficient form of these legal tools is the so-called Executive Agreements. Executive agreements were initially the best way to work out differences between governments and various ministries, as they did not even require the national legislative body’s approval. That practice changed in the recent years, even though these agreements were admitted and upheld in case law and in practice. In the United States for example, the congress mandated its approval now for any decision the president wants to make with a foreign country. This requirement moved the process of inter-state agreements to the more conventional way of doing things and that is the entering into treaties with other governments.
According to the Vienna Convention, a treaty is an “international agreement concluded between states, in written form, and governed by international law…” Under the general principle of pacta sunt servanda, all treaties are considered to be binding and are to be executed by all parties in good faith. In the case of human rights laws, the UDHR should not be understood to be a treaty; as it is simply a declaration as the name indicates. For a document like that to be adopted, it must go through a process leading to its adoption as a binding treaty. Generally, a treaty will be considered binding upon its ratification of the concerned states. The process of ratification itself is different from one state to another and from one treaty to another. For instance, some states would consider the signature of its representative as sufficient, for others, ratification (or other complex process) may be required for them to be bound by the terms of the treaty. In the case of the US, ratification takes place upon the consent of the Senate by two-thirds of the vote and upon the formal ratification by the president.
The process of ratification in many instances leads to changes in the original document. These changes could take the form of reservations, amendments and reservations, and compromissory clauses. Once all these steps are cleared, a treaty may then be registered with the United Nations.
Obviously as abiding by the terms of treaties and agreements are the most important elements; the UN system initiated a number of mechanisms that would help in the process of implementation of the terms of treaties and rules. These mechanisms can be easily categorized as Charter-based and Treaty-based mechanisms. The Charter-based mechanisms are mandated by the Charter of the UN; while the Treaty-based mechanisms consist of committees created to monitor and report on the compliance by states that are signatories to specific treaties and agreements.
The UN and the world community also encouraged regional mechanism to promote and to protect human rights and to monitor compliance in matters of treaties in general. The American, European and African bodies that focus on Human rights have been active in this process, but inactive schemes and non-existent ones are needed to expend the current arrangement for better efficiency.
An equally important scheme of helping in the process of respecting, implementing, and monitoring treaties and agreements on human rights issues is the Non-Governmental Organizations (NGOs). As independent organizations, the NGOs have been very successful in standardizing the level of compliance and in bringing out facts.
Before we close this outline on the human rights in the international law context, we should devote some space to a recent initiative that is strongly relevant to the question of human rights and that is the idea of International Criminal Court. The initiative was started in 1998 and rapidly gained the support of over 60 nations. This court would have the jurisdiction of prosecuting individuals responsible for crimes against humanity. This court is different from other international court systems in that it would not need the approval of the security council; rather it will be left to the prosecutor to decide whether to indict or not. The court cannot take any cases retroactively, that is it can only try cases of crimes that happed post July 1, 2002.