Introduction to Human Rights Week 3: The sources of Human Rights III. International sources So, let us move on to Human Rights international sources. The national protection, which is restricted to the territories and to the authorities of fundamental rights, has not avoided major drifts and massive violations of these rights throughout history. World War II marked the highest point of this tragedy. It illustrated this phenomenon in an abominable and tragic way with persecutions inflicted and planned against millions of people. At the end of World War II, the report of these persecutions generated two simple ideas. The first one is to limit sovereignty and States power thanks to the supranational recognition, that is to say the international recognition, of a few rights among the most elementary ones. The second idea is to correlatively provide this establishment with procedures aiming at ensuring an international control of compliance with rights enshrined at the supranational level. This is how contemporary Human Rights are born. Their consecration, their conception and their implementation are inseparable from international law. Therefore, Human Rights find their sources and their guarantees in international law. On the other hand, fundamental rights are restricted to States territories. The recognition of Human Rights on the international level had a similar trajectory from the one which characterized the origin and the evolution of fundamental rights at the national level. We can distinguish here the three steps that we have already identified regarding fundamental rights: First, the solemn apparition of Human Rights in declarations of principles. Then, their normative consecration by legally binding instruments on the institutional stage. Finally, the establishment of control mechanisms aiming at ensuring their respect. In the United Sates, for example, fundamental rights largely result from the Declaration of Independence of 4 July 1776 which mentioned a couple of basic rights necessary to the emancipation of the people from the new State. These rights were then legally implemented by the Bill of Rights which was adopted in 1791 and which completed the United States Constitution of 1787. Not long after, the third step was to set up a sophisticated system of constitutional jurisdictions, which is a monitoring procedure aiming at ensuring the respect of these rights in the United States. Even today, the Supreme Court of the United States based in Washington controls the respect of these rights on the basis of the Bill of Rights of 1791. Let us take another example: In France, the Rights of Man and of the Citizen were solemnly proclaimed in the Declaration of 26 August 1789. Legally speaking, this Declaration can be compared to the Storming of the Bastille which happened some time before. Then, the rights that appeared in the Declaration of 1789 were integrated into the French Constitutional Law. Because of the development of the constitutional control that took place in this country, today it is still an original organ that ensures the control of the respect of fundamental rights. This organ is the Constitutional Council, housed in the Palais-Royal in Paris. At the international level, it is interesting to notice that the first step that legally marked the starting point of the contemporary conception of Human Rights took place on 10 December 1948 with the adoption of the Universal Declaration of Human Rights by the UN General Assembly. Former UN High Commissioner for Human Rights, Madam Louise Arbour, said upon Human Rights Day on 10 December 2007: "It is hard to imagine today the fundamental change that the Universal Declaration represented when it was adopted 60 years ago. In a postwar world marked by the Holocaust, divided by colonialism and torn apart by inequalities, a Charter expressing the first global and official commitment in favour of human dignity and of inherent equality of all human beings independently of their color, their belief or their origin was a bold initiative." The Universal Declaration of Human Rights was not created to display legal effects. Historically, this text is only a moral commitment for the States. Moreover, this is one of the elements which contributed to its drafting and to its formal adoption. The issue being discussed today is whether some of the clauses of the Universal Declaration have acquired a customary power in order to impose themselves on the States, independently of other international commitments. However, we won't talk about it in this context. On the other hand, it can be said that the Universal Declaration of Human Rights was a direct inspiration for the adoption of international treaties, that is to say international laws destined to provide a legally binding effect with respect to the rights set out in the treaties. We can of course refer here to the two UN Covenants adopted on 16 December 1966. So, it was about 18 years after the Universal Declaration was drawn up. The international Covenant related to economic, social and cultural rights is called "first Covenant" because it was the first to be adopted on this day at the General Assembly. The international Covenant related to civil and political rights is called "second Covenant" because it was adopted right after the previous one. These three instruments, the Universal Declaration and the two Covenants, share a kind of historical umbilical link. This is why we still talk about them as International Charter of Human Rights. But it should be noted that almost all of the other instruments adopted by the United Nations General Assembly and opened for signature regarding the protection of Human Rights also refer to the Universal Declaration. This is for example true of the Convention on the Elimination of All Forms of Racial Discrimination of 1965. A more recent example is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment adopted in 1984. The founder role that belongs to the Universal Declaration of Human Rights has also inspired the adoption of treaties mandated to provide the protection of Human Rights at the regional level. This is for example the case of the European Court of Human Rights of 4 November 1950 whose preamble says, I quote: "The Governments signatory hereto, being members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared; [...] [are] resolved [...] to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration [...]" The Convention follows. The reference to the Universal Declaration is also present in other regional instruments such as the American Convention on Human Rights or the African Charter on Human and Peoples' Rights. As I said it earlier, it is a comprising and founding instrument which remains the reference and the starting point of this process of normative concretization. The Universal Declaration of Human Rights also inspired national Constitutions. For example, the Declaration was used as a reference to establish a new system, a new mechanism and a new conception in terms of fundamental Rights' protection when questions arose at the time when revolutionary fractures led to a change of regime in some States. Here I refer, for example, to the Spanish Constitution of 28 December 1978 of which the second paragraph of article 10 has an original clause. It explicitly refers to the Universal Declaration of Human Rights by specifying that the fundamental rights "recognised by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by Spain". A similar phenomenon can be observed in other countries which have not necessarily known a historical breaking process but which could change Constitution overtime. In Switzerland, for example, the adoption of the federal Constitution on 18 April 1999 led to the establishment, the drawing up and the adoption of a very complete list of fundamental rights which is directly inspired from international sources, especially the Universal Declaration such as realized by instruments like the Convention of 1965 on the Elimination of All Forms of Racial Discrimination or the International Covenant on Civil and Political Rights. Some provisions of this Constitution such as the fight against discrimination, personal freedom, freedom of speech, or more specific guarantees in the field of criminal procedures have used and referred to the international Human Rights instruments recognised by Switzerland. The point of these illustrations and of these quotations is to show that there are very close legal connections between fundamental rights and Human Rights. If fundamental rights preceded Human Rights and if, in a way, Human Rights used them at the international and regional levels, the opposite phenomenon can also be observed: Human Rights invest a lot the national field and they influence national sources of the law, regardless of whether they are constitutional or legislative. The main sources of the establishment of Human Rights on the international level are indisputably the international treaties, that is to say conventions that States accept to sign with international organisations which have developed systems of protection of Human Rights. There is another source of Human Rights at the international level. This is an original source. It is what we call peremptory rules of international law. We also sometimes use the Latin expression "lus cogens" which means binding law. Some of these laws directly refer to Human Rights. Not all binding international rules concern Human Rights. Indeed, some rules concern the relation between the actors of the international society. They won't interest us here. But some Human Rights became binding peremptory rules of international law throughout history. Meaning that it binds States, independently of any Convention. Nowadays, we consider that guarantees such as the right to life, the prohibition of torture, the principle of non-refoulement, prohibition of slavery or the prohibition of racial discrimination belong to peremptory rules of international law. They deploy an autonomous wingspread on the margin of conventional rights enshrined in the treaties. We will now see how these sources are linked with the national and the international stages in order to guarantee Human Rights.
