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3

Global Laws, Local Lives

Basic Concepts and Legal Regimes of Human Rights Law in the Americas

3.1 Introduction

International human rights are essential predicates to life for human beings.1 They are rooted in moral, social, religious, legal, and political concerns for respect and dignity of individuals.2 Such rights are vital to personhood, to a human being’s identity.3 The human rights idea is a relatively recent one. There are strong disagreements regarding whether there is a single, universally applicable concept of human rights. While some insist on such universality, others urge a culturally relative view.4

The evolution of international rights of persons dates to the 19th and early 20th centuries. At that time, particularly with shifting national borders, states began to enter into treaties that protected the rights of minority populations within a state. Also, treaties that abolished the practice of slavery effectively were for the protection of individuals.

The watershed events for the emergence of the human rights framework followed the unparalleled Nazi atrocities of the Second World War. After Nuremberg, for the first time individuals, and not only states, were accepted as actors in the global sphere. In the post–Second World War era individuals are both objects and subjects of international law.

This narrative about the emergence of the human rights system has been critiqued as Northern and Western in perspective and scope. In response to the criticism, however, the human rights community has enabled a platform for broader participation—a platform in which the North/West domination has begun to cede to global participation. The North and South, East and West—with women at the forefront—have started efforts to work side by side to create an inclusive blueprint for the further development of human rights in the 21st century.

The consensus documents that make up this blueprint address issues ranging from the environment to education; from universality of rights to respect for cultural traditions; from population growth to economic growth and sustainable development; from gender equity and equality to the empowerment of women; from the role of the family to the role of the government; from health to migration; from equity among generations to the placing of people at the center of development; from the recognition that social development is both a national and international concern to the recognition of the need to integrate economic, cultural, and social policies to achieve desired ends; and from employment to affordable housing so that the health, education, and welfare goals of individuals, families, governments, and the global community can be met.

3.2 Theoretical Underpinnings of Human Rights Law

The origins of human rights can be traced to Greece and Rome; they have been identified with “premodern natural law doctrines of Greek Stoicism (the school of philosophy … which held that a universal working force pervades all creation and that human conduct therefore should be judged according to, and brought into harmony with, the law of nature).”5 After the Middle Ages, natural law became associated with theories of natural rights, although in medieval times natural law was viewed as imposing duties on, as opposed to granting rights to, “man.” The underpinnings of natural law are assumptions that there are laws existing in nature—both theological and metaphysical—that constitute a higher law identified with all humankind and that requires protections of individual rights. An underlying assumption of natural law is that there is a common human nature that presupposes the equality of all human beings.6 Of course, it is intrinsically contradictory that the idea of human rights developed at a time during which slavery and serfdom—concepts anathema to the notion of human rights, liberty, freedom, equality, and dignity—were legally accepted.7

It is noteworthy that from the early days, however, the language used to analyze or discuss these rights of “man” suggested that they were inalienable. For example, Locke argued that “certain rights self-evidently pertain to individuals as human beings (because they existed in ‘the state of nature’ before humankind entered civil society); that chief among them are the rights to life, liberty (freedom from arbitrary rule), and property; that, upon entering civil society, pursuant to a ‘social contract,’ humankind surrendered to the state only the right to enforce these natural rights, not the rights themselves; and that the state’s failure to secure these reserved natural rights … gives rise to a right to responsible, popular revolution.”8

The writings of St. Thomas Aquinas evince the religious foundations of natural law philosophy. Aquinas posited that all human laws derive from, and are subordinate to, the law of God. He viewed the law of nature as “a body of permanent principles grounded in the Divine Order, and partly revealed in the Scripture.”9 In his 13th-century writings, Aquinas even endorsed the notion that one sovereign can interfere in the internal affairs of another when one sovereign mistreats its subjects.10 Spanish theologians Francisco de Vitoria and Francisco Suárez carried forward the religious view of the natural law. They both recognized that beyond individual states, there existed a community of states—that is, international rules that, established “by rational derivation from basic moral principles of divine origin,” governed interactions between and among states.11

Hugo Grotius, a key thinker in the development of the law of nations (international law), was guided by natural law. As a “rationalist who derives the principles of the law of nature from universal reason rather than from divine authority,”12 however, his natural law concept was secular, based on a person’s rationality rather than revelation and deduction of God’s will.13 Grotius recognized the notion of state sovereignty over its subjects. Like Aquinas, however, he recognized that sovereignty was not an unfettered right. Grotius wrote that “if a tyrant … practices atrocities towards his subjects, which no just man can approve, the right of human social connexion is not cut off in such case.”14

Grotius provided a bridge to the positivists by distinguishing between natural law and the customary law of nations based on the conduct and will of nations. The “will of nations” was central to positivism, which relied “on the practice of states and the conduct of international relations as evidenced by customs or treaties” for the statement of the law.15 Positivism focused on states’ conduct—that is, what states did in practice rather then what occurred based on forces existing in nature. The shift to positivism corresponded to the rise of the independent and sovereign nation-state.16

The value of the positivists’ contributions lies in their recognition of the importance of organizing rules by established processes of the states. Once states authoritatively can formulate rules, they can protect human rights. Positivism’s weakness, however, lies in the fact that the values promoted as human rights become wholly dependent on the perspective of the governing elite.17 Under a positivist model, human dignity is what a state makes it.

Some contemporary theories have affected, expanded, and transformed traditional human rights law analysis. These theories include the communications theory (viewing law as an interactive process), the legitimacy theory (concluding that states follow international law because they have a legitimizing voice in its formation), the feminist theory (asking the “woman question” and noting the exclusion of women in international processes and institutions), the Third World or development theory (critiquing the Northern/industrial bias of international law), the Asian critique (noting the Western biases in international law), and the LatCrit critique (emphasizing the Western, industrial, gender bias of law and urging a pluralistic, multidimensional approach).

3.3 Origins of International Human Rights Law: General Concepts

The Second World War was the watershed event for the change of the status of individuals in international law. Nazi atrocities resulted in the punishment of war criminals at Nuremberg and Tokyo. The interrelated desire to prevent the recurrence of such crimes against humanity resulted in the development of new standards for the protection of human rights. It is important to note, however, that the individual was recognized in the global setting prior to the Second World War. Early writers recognized the importance of individuals to the law of nations because individuals constitute “the personal basis of every State,” and, consequently, international law needed to “provide certain rules regarding individuals.”18 Individuals, however, were deemed to be objects, and not subjects, of the law of nations.19

After the Thirty Years War in central Europe, the diversity of peoples and ideologies required orderly processes for state-to-state communications and interchanges. Indeed, in the 17th century, Grotius’s visionary statement that “human rights norms must exist today in a diverse world of immensely varied ideologies and beliefs” effectively predicted the development of a sophisticated human rights system.20

Although in its beginnings international law applied only to states, both customary and conventional norms emerged that dealt with individuals. The individuals were those in whom the state had an interest, such as diplomatic personnel (diplomatic privileges and immunities) and nationals of foreign sovereigns. To accommodate the latter, treaties of friendship, commerce and navigation, jurisdiction, and laws of war emerged. While in these early stages of providing for individuals the obligations always remained with the state, the benefit redounded to the individual.21 Other early instances of protections of individuals also existed (such as the 17th-century negotiation by Catholic princes to ensure appropriate treatment of Catholics by Protestant princes, and vice versa).22

What is presently known as human rights to life, liberty, and equality were unformulated until the last decades of the 18th century. These rights emerged in conjunction with the establishment of democratic forms of government.23 In the 19th and early 20th centuries, states entered into an increasing number of treaties with the purpose of protecting the rights of certain classes of persons, mostly minority groups (that is, persons of a different race, religion, or language from the majority group), within a state. The origins of these treaties can be traced to the period after the First World War when changes in sovereign boundaries required the expansion of rights to minorities because of the rise of nationalistic sentiments that created a real danger of oppression of racial, ethnic, linguistic, and religious minorities. Consequently, the allied and associated powers concluded a number of treaties in which states promised to treat such minority groups justly and equally.

In 1919, states that participated in the First World War endeavored to establish an international organization, the League of Nations, which would be responsible for the maintenance of world order, resolve disputes between states, and halt aggression.24 The League of Nations, succeeded by the United Nations in 1946, played an important role in protecting minorities after the redrawing of boundaries following the First World War.25

Notwithstanding their treaty obligations, states regularly breached their commitments to equal treatment of minority groups. States considered provisions imposing limitations on how they could treat persons located within their borders as intrusions into their national sovereignty. A noted scholar reported: “Before the Second World War, scholars and diplomats assumed that international law allowed each equal sovereign an equal right to be monstrous to his subjects. Summary execution, torture, conviction without due process (or any process, for that matter) were legally significant events only if the victim of such official eccentricities were the citizen of another state. In that case, international law treated him as the bearer not of personal rights but of rights belonging to his government, and ultimately to the state for which it temporarily spoke”26 This attitude resulted in the Permanent Court of International Justice’s (PCIJ) reiteration that discrimination against minorities within a state constituted a violation of obligations under the treaties protecting minority groups.27

In addition to these “minority treaties,” other important 20th-century human rights developments included treaties aimed at abolishing slavery and the slave trade. Freedom from slavery as a customary international norm dates to 1915. This norm was reaffirmed in international conventions such as the 1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery. Subsequent treaties further prohibited the trafficking in women and children.28

In his early treatise, Oppenheim listed “rights of mankind” guaranteed to all individuals by their state of nationality, as well as by foreign sovereigns, pursuant to the law of nations. These included the “right of existence, the right to protection of honor, life, health, liberty, and property, the right of practicing any religion one likes, the right of emigration and the like.”29 While acknowledging that individuals cannot be subjects of law that is limited to relations between states, and recognizing the sovereignty of states, Oppenheim acknowledged the supra-sovereign nature of “human” rights: “There is no doubt that, should a State venture to treat its own subjects or a part thereof with such cruelty as would stagger humanity, public opinion of the rest of the world would call upon the Powers to exercise intervention for the purpose of compelling such State to establish a legal order of things within its boundaries sufficient to guarantee to its citizens an existence more adequate to the ideas of modern civilization.”30

That human rights limit state sovereignty is now accepted. During the Second World War, German Nazis were punished for committing atrocities against millions of innocent civilians, including German Jews. Thus, the state was not insulated from sanctions by an international tribunal for crimes against its own nationals.31

The modern view of human rights, with the individual at the center, emerged in the wake of the Nuremberg and Tokyo trials. In a now oft-quoted phrase, the Nuremberg Tribunal asserted that “crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”32 International law moved from being a statist discipline to being one that recognizes the interests and rights of individuals.33

3.4 Modern Human Rights Developments

(A) The Internationalization of Human Rights Law

Since the signing of the UN Charter in 1945, states have concluded international agreements that provide comprehensive protections for individuals against various forms of injustice, regardless of whether the abuse or injustice was committed by a foreign sovereign or the individuals’ own state of nationality.34

The UN Charter provisions address human rights. The preamble provides that Members “reaffirm [their] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,” as well as the institution’s goal “to promote social progress and better standards of life in larger freedom.” In addition, Article 55(a) mandates that the United Nations promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”35 To achieve this end, at Article 56, state Members “pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of [such] purposes.”

The UN Charter embraces the natural law notion of rights as “rights to which all human beings have been entitled since time immemorial and to which they will continue to be entitled as long as humanity survives”36 These natural rights are inalienable, permanent, and universal. They are part of the UN Charter’s equality goal.37 The universality of rights is contested as founded in Western philosophy and lacking Eastern and/or Southern linkages. Instead of universal, some posit that rights are culturally contingent.

There exists an ongoing debate as to whether the human rights provisions of the UN Charter create binding legal obligations on a Member state to respect the human rights of persons located within its borders, be they nationals or nonnationals. States have reached different conclusions with respect to the nature of the Charter’s human rights obligations. Some view the obligations as binding,38 others have concluded, particularly in older writings, that they are not binding.39 Notwithstanding such inconsistent interpretations, the International Court of Justice (ICJ) has referred to the Charter’s provisions as “obligation,” and to breaches thereof as “violations of the purposes and principles of the Charter.”40 The ICJ also has stated that “distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights … [are] a flagrant violation of the purposes and principles of the Charter.”41 Further, many propose that the rights in the Charter, together with other documents, have become part of the customary international law of human rights.42

The key documents that create human rights obligations today include the so-called International Bill of Human Rights comprised by the Universal Declaration; the Internationan Covenant on Economic, Social, and Cultural Rights (ICESCR); and the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols. Other significant human rights treaties include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Rights of the Child (CRC); the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture); and the Convention on the Prevention and Punishment of the Crime of Genocide. There are also three regional human rights treaties: the African (Banjul) Charter on Human and Peoples’ Rights, the American Convention on Human Rights (ACHR), and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. Furthermore, numerous other instruments resulting from UN conferences also address human rights concerns relevant to this volume.43 Such declarations and resolutions, while not legally binding, carry moral persuasion and reflect the trend toward customary international law status.

It is instructive to review the historical background of the first three of these documents. In 1947, with former First Lady of the United States Eleanor Roosevelt (the U.S. representative) as chair, the UN Commission on Human Rights (UNCHR) commenced the drafting process for an International Bill of Human Rights as mandated by the UN Economic and Social Council. In December of that year, at UNCHR’s Second Session, it was decided that the International Bill of Human Rights should consist of a “declaration,” a “covenant,” and “measures of implementation.”44

The Universal Declaration was unanimously adopted on November 10, 1948.45 When the UN General Assembly adopted the Declaration, it requested that priority be given to preparation of one covenant and measures of implementation that would embody the principles contained in the Declaration.46 Significantly, the Universal Declaration is a comprehensive document dealing not only with civil and political rights but also with economic, social, and cultural rights. (For a discussion of the different types of rights, see section 3.5.)

While debate about the legal status of the Universal Declaration is ongoing, many scholars consider it to be legally binding as a general principle of international law; others consider it to have the status of jus cogens,47 even though at the time of its adoption the U.S. representative to the UN General Assembly stated: “It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation.”48 Subsequent developments in both domestic and international law, however, generally confirm that at least some provisions of the Universal Declaration have status as customary law.49 In fact, the Restatement (Third) of Foreign Relations Law provides that “almost all states would agree that some infringements of human rights enumerated in the Universal Declaration are violations of the Charter or of customary international law”50

The finalization of the covenant that was to follow the Universal Declaration presented significantly more difficulties than the drafting and adoption of the Declaration. From 1949 to 1954 the UNCHR devoted six sessions to preparation of the covenant.51 The problems resulted from interrogations by so-called developed states as to whether social, economic, and cultural rights—already articulated in the Declaration—were relevant to, or appropriate as, human rights. Such states maintained that social, economic, and cultural rights were aspirational goals—the attainment of which was dependent on economic resources and economic theory and ideology. Consequently, Western states held that economic rights were inappropriate for framing as binding legal obligations. On the other hand, then-Second and -Third World states held that economic rights were the most important. The different viewpoints resulted in the drafting of two international documents—the ICCPR and the ICESCR—to be submitted simultaneously for consideration by the General Assembly. One document was to contain civil and political rights and the other social and economic and cultural rights. The General Assembly instructed that, in order to maintain uniformity, both covenants should overlap to the greatest extent possible.52

Finally, on December 16, 1966, the General Assembly adopted and opened for signature, ratification, and accession the ICESCR, the ICCPR, and the Optional Protocol to the ICCPR.53 In the two covenants that emerged, the only overlapping provisions were those on nondiscrimination (including discrimination based on sex), self-determination, and sovereignty over natural resources. These two covenants, like the UN Charter, reflect the natural law origins of human rights law. For example, the ICCPR’s prohibition against the suspension of certain rights by the state, even in the event of public emergencies that threaten the life of the nation, reflect the notion of the inalienability of certain rights.54

(B) The Regional Systems

The three regional human rights systems cover the European, Inter-American, and African regions; there is currently no Asian or Middle Eastern regional human rights system. Of these, the one of concern in this volume is the Inter-American system, which is composed of various documents and has two overlapping frameworks. First, the OAS Charter,55 in Article 106, established the Inter-American Commission on Human Rights (IACHR), which was given limited power to promote the human rights embodied in the 1948 American Declaration on the Rights and Duties of Man (American Declaration). In 1970 the OAS Charter was amended by the 1967 Protocol of Buenos Aires, which strengthened the IACHR and institutionalized the implementation of the American Declaration.

Second, in 1969, states of the Inter-American region adopted the ACHR, which contains a long list of substantive rights. This framework includes the IACHR, which also is part of the OAS system. In 1979 the IACHR was charged with “develop[ing] an awareness of human rights among the peoples of America.”56 The IACHR may receive complaints of violations and issue reports on the status of human rights in the region. As established by this framework, it can receive cases only from state parties. In 1988, the Protocol of San Salvador,57 which covers social and economic rights, was attached to the ACHR.

3.5 Classification of Specific Human Rights

United Nations documents emphasize the indivisibility and interdependence of all categories of human rights.58 Human rights are grouped in three categories: civil and political rights (so-called first generation); social, economic, and cultural rights (so-called second generation); and solidarity rights (so-called third generation).

(A) Civil and Political Rights: The First Generation

Civil and political rights, “the rights of Man,” were at their apogee starting in the 18th century. These rights are traced to the “bourgeois” revolutions—particularly the French and American revolutions in the last quarter of the 18th century—that gave rise to the [French] Declaration on the Rights of Man and the U.S. Declaration of Independence, the foundational documents for this group of rights.59

Civil and political rights originally were conceived as negative rights—that is, realms that should be free from government interference.60 Such a conception of negative rights, however, is exceedingly (and misleadingly) limiting. For example, the right to a fair trial falls into this category, yet it requires “positive” state action—the creation of a system of justice for it to be realized.

The right to nondiscrimination on the basis of race, gender, language, religion, culture, family, ethnicity, national origin, and social origin is a basic tenet of civil and political rights. Yet, notwithstanding such a foundational principle, civil and political rights are gendered and racialized. For example, women are far from enjoying equal rights to speech, participation, travel, or owning land.61

Rights of the first generation have been criticized because they have “meant for the majority of the working class and peoples of conquered lands the right to be exploited and colonized. They were regarded as ‘formal’ freedoms that neglected the material realities of social conditions.”62

(B) Social, Economic, and Cultural Rights: The Second Generation

Socialist states posited that the freedoms of the first-generation rights simply permitted the exploitation and subjugation of working and colonized people. The second generation, in contrast, reflects the ideals of the socialist revolutions of the first two decades of the 20th century. The “usher[ing] in [of] the second generation” was effected and underscored by the post-socialist revolution Mexican and Russian constitutions of 1917 as well as by the 1919 Constitution of the International Labour Organization (ILO).63 Contrasted to the first generation’s emphasis on protecting individual rights from governmental tyranny through participation in the political processes, the second-generation rights underscored a rejection of the exploitation of peoples and focused on the intervention of the state in order to effectuate certain claims. As distinguished from the “negative” civil and political rights, social, economic, and cultural rights are positive rights—rights that require state action. These rights emphasize the collective or group, as opposed to the individual.

This second generation includes three different types of rights. First are social rights that consist of, for example, the right to an adequate standard of living, adopting the notion that everyone should enjoy subsistence rights such as adequate food and nutrition, clothing, and housing.64 Economic rights are also included, ranging from the right to social security to the right to work. Finally, a broad spectrum of cultural rights includes the right to take part in cultural life, the right to enjoy the benefits of scientific progress and its applications, and the right to preserve the cultural identity of minority groups.65 Such protection of cultural traditions is significant because culture contains the basic source of identity and preservation of identity, which is important for the well-being and self-respect of a human being (rights that can be called first-generation human rights). Western states in general have resisted the notion of social and economic rights. U.S. President Franklin Delano Roosevelt, however, appears to have wholeheartedly embraced them.66

It is important to note before closing this section that the South’s historical exclusion from enjoyment of rights is particularly true and marked when one considers social, economic, and cultural rights. Colonial regimes deprived persons of their rights to such opportunities as work and education and allowed the exclusion of women from full participation in the public and private spheres. The justification for such exclusion often was based on the pretext of tradition and cultural classifications. Thus, rather than these new rights resulting in women’s equality, they allowed communities to continue their traditional practices or customs that subordinate women.

(C) Solidarity Rights: The Third Generation

Like the first and second generations of rights, the third generation is also sourced in revolution—the anticolonialist revolutions that immediately followed the Second World War and, around 1960, resulted in the independence of many nations. Such revolutions influenced the text of human rights instruments by giving importance and context to the rights to self-determination and nondiscrimination—both of which are found in the ICCPR and the ICESCR. This movement also emphasized the rejection of foreign domination and occupation, freedom from aggression, and threats against national sovereignty. These rights, too, have been labeled as inalienable rights.67

Two distinctive characteristics are attendant to third-generation rights. First, solidarity rights do not belong to the individualistic tradition of the first-generation rights nor to the socialist tradition of the second-generation rights. Second, while these rights are in an early phase of legislative process, documents reveal that they were in the process of being recognized as international human rights during the 1980s. The rights falling under this generation category include the right to environment,68 development,69 peace,70 democracy, as well as rights to common heritage, communication, and humanitarian assistance.71

The notion of interdependence and indivisibility of rights recently was reiterated in the Vienna Declaration, which plainly states that “all human rights are universal, indivisible and inter-dependent and interrelated.”72 Moreover, the generational scheme of classification of rights is questionable in light of the myriad significant documents in which the first-, second-, and third-generation rights coexist, such as in the CRC, the CEDAW, the CERD, and the African Charter.

3.6 Human Rights and Trade

In relation to trade, rights of all generations are relevant. Some rights might appear to have a closer nexus to trade than others. For example, labor rights, including the right to work, to association, to form trade unions, to safe working conditions, to fair wages, and to equality, are plainly connected to trade. The rights to liberty, personhood, and freedom from slavery are key concerns of the trafficking for labor. In addition, the right to a healthy environment is directly linked to trade. Protecting the Amazon has been one of the loudly articulated concerns. With these examples in mind, it is not surprising that labor and environment activities have been among the most vehement opponents to “free trade.”

Other rights, such as the right to a fair trial, have a less direct or obvious linkage to trade, yet the linkage exists. Trade is more likely to occur in a location where investments are secure and travel is safe and, if some problem arises, there is a system of justice that will resolve it in a fair and equitable manner. Yet other rights have both direct and indirect linkages to trade. The right to property has a direct connection regarding economic development. It also has an indirect tie. For instance, foreign investor protections may decrease the enjoyment of property. The chapters in this book will explore the linkages—sometimes direct and sometimes less obvious—between trade and numerous human rights.