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| Convention: an international agreement between two or more states |
| International Covenant on Civil and Political Rights: together with the Covenant on Economic, Social, and Cultural Rights, the ICCPR is a legally binding treaty that embodies many of the rights proclaimed in the Universal Declaration of Human Rights, such as the right to life, liberty, and security of person, as well as the right to privacy, religion, and peaceful assembly. |
| International Covenant on Economic, Social, and Cultural Rights: together with the Covenant on Civil and Political Rights, the ICESCR is a legally binding treaty that embodies many of the rights proclaimed in the Universal Declaration of Human Rights, such as the right to life, liberty, and security of person, as well as the right to privacy, religion, and peaceful assembly. |
| Ratified: to confirm or express consent by formal approval, often through voting. |
| International Bill of Rights: the term used to refer to both the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights when considered together. |
| Subsidiarity: the principle that matters ought to be handled by the lowest or smallest competent authority. In practice this means leaving local issues to be handled by local government while national issues (such as war or national security) should be handled by national government. In the context of the International Criminal Court, the term refers to the principle of allowing a country to prosecute a crime the Court has jurisdiction over unless that country is unwilling or unable to do so, at which point the Court will exercise jurisdiction. |
| Protocols: the first draft of a treaty before ratification, or an international agreement of less formal stature than a treaty. The term ‘protocol’ may also be used to refer to an optional and supplemental agreement to a treaty that states have already signed. State parties to the primary treaty are then not required to sign the protocol for the primary treaty to go into effect, but are allowed to do so if they support the additional requirements of the protocol. For instance, there is an optional protocol to the International Covenant on Civil and Political Rights (ICCPR) that requires the elimination of the death penalty within the borders of states that adopt the protocol. This is an additional requirement not contained in the ICCPR. Because it is optional and does not limit a state’s ability to adopt the ICCPR, only some states chose to adopt this additional commitment. |
| Customary International Law: rules of law derived from the consistent conduct of states acting out of the belief that law required them to act that way, i.e. persistent and customary practice of states can lead to the consideration of their behavior as creating a legal precedent for future action. |
| Jus Cogens: a principle of international law that is based on values taken to be fundamental to the international community and that cannot be set aside. |
| Anti-Ballistics Missile Treaty: a treaty between the United States and the Soviet Union signed on May 26, 1972 that limited the deployment of anti-ballistic missile systems in each country. These systems were designed to defend against incoming missile-delivered nuclear weapons. |
The Universal Declaration was a consensus statement of principle but did not have legally binding force from the perspective of international law. The abstract set of principles articulated in the Declaration would have to be translated into more detailed conventions for member states to adopt and then use to fashion enforceable national legislation.
It took eighteen years of debate to determine how this translation should be achieved. A split emerged during the process of drafting the follow-up to the Universal Declaration because some countries maintained a different view about the nature of economic, political and cultural rights. It was therefore decided in 1952, based on a motion from India and Lebanon with support from Belgium and the United States, that two conventions would be drafted instead of one.1
In 1966, the drafts of two conventions were approved: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Both agreements entered into force for the states that ratified them in 1976.2 Collectively, these two Covenants along with the Universal Declaration became known as the International Bill of Rights.
The ICESCR will be covered in less detail in this Issue in Depth (see section on “Rights vs. Aspirations vs Duties”).3 The full text of the document can be found here: http://www.unhchr.ch/html/menu3/b/a_cescr.htm.
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The Status of Human Rights in International Law It is important to understand that the Universal Declaration is itself more a commonly agreed vision than a binding legal document. It was designed to provide the foundation for future conventions that would further define human rights within a legal context. These conventions are essentially multilateral treaties, agreements made by a number of countries in which they voluntarily accept certain standards that then become enforceable in international law. It is important to note that not all states agree to the conventions passed by international legislators. Conventions are common instruments in international affairs and are used when nations want to formalize relations and mutual obligations amongst one another. Once a country has signed and ratified a convention, it then adopts national laws that are legally binding within that particular state to implement the obligations in the convention. After ratification, some countries allow for immediate incorporation into national law; others (such as the United States) have a two-step process, in which ratification is followed by implementing legislation. States are able to adapt international commitments to the conditions of their local environment (even as they adopt principles that have an agreed upon meaning in the international community is known) in a fashion similar to the way federalized bodies like the European Union handle the localization of multilateral commitments, as “subsidiarity.”4 The ramifications of the localization process – and potential conflicts between the demands of local cultures and international norms – will be considered later in this Brief (see “Indigenous Rights.”) The International Bill of Rights is so central to the purpose and operations of the United Nations that it has “become almost an extension of the UN Charter.” The Universal Declaration, as well as its conventions and protocols, is often referenced in debates held in the UN and in resolutions passed by the General Assembly and other UN bodies. As a result, many have come to believe that the International Bill of Rights, or at least many of the rights contained therein, have become part of customary international law, or jus cogens (literally, “compelling law.”)5 Recognizing a law as jus cogens confers on it a special status that is meant to supersede all other forms of international law. No other treaties or international agreements, regardless of the will of individual states, can preempt or contradict jus cogens under any circumstances. In other words, “Unlike treaties, which only bind a country once it has accepted the treaty obligations, all countries in the world are bound, whatever their particular view may be. A country cannot repudiate international customary law, as it can a treaty obligation.”6 In 2002, for example, the U.S. was able to withdraw voluntarily from the Anti-Ballistic Missile Treaty it had signed with Russia in 1972 without formal repercussions because this was merely a treaty between two nations.7 It would be far more objectionable—many would argue impossible—for the U.S. to withdraw from the Convention on Torture, since prohibition of torture is generally accepted as jus cogens The very notion of jus cogens is a powerful challenge to the sovereignty of states, and therefore many states have resisted accepting its validity. On the other hand, some contend that “contemporary society is bound together by the acceptance of fundamental principles constituting the rule of law, and that international law is an inseparable concomitant of an international public order.”8 In other words, jus cogens helps ensure a peaceful and stable world by providing an eternal, immutable standard against which all actions may be judged; if human rights are universally accepted and contribute to this purpose, perhaps they should be granted special recognition in this way. The reach of jus cogens remains a subject of debate, as does the open question of whether the UN’s version of human rights merits such designation. For more on treaties and customary law, see the “What Are the Sources of International Law?”. |
1 Robertson 29; “25 Questions & Answers” 7.
3 As of July 21, 2009, 160 countries are parties to the agreement. The United States remains one country that has not ratified the convention, though it did sign the ICESCR in 1977.
5 Bailey; “Human Rights Fundamentals;” “Jus Cogens.” There is a technical difference between customary law and jus cogens, but that is beyond the scope of this discussion.