INTERNATIONAL HUMAN RIGHTS LAW: An Introduction

INTERNATIONAL HUMAN RIGHTS 

Doughty Street Chambers 

International human rights law is critical to respecting, protecting and fulfilling the basic civil, political, economic, social and cultural rights that all human beings should enjoy. International human rights law lays down obligations which States are bound to comply with. By becoming parties to international treaties, States assume obligations and duties under international law to do three things: to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights; the obligation to protect requires States to protect individuals and groups against human rights abuses; and the obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.

The COVID-19 pandemic has brought great challenges for international human rights practitioners in ensuring States comply with these obligations to respect, protect and fulfil human rights in their responses to the COVID-19 pandemic. The world has through this time been facing an unprecedented crisis, described by the United Nations as, “a global public health emergency on a scale not seen for a century, requiring a global response with far-reaching consequences for our economic, social and political lives… The public health crisis is fast becoming an economic and social crisis and a protection and human rights crisis rolled into one.” In view of the exceptional situation and to preserve life, many countries have adopted extraordinary measures, including mandatory lockdowns, restrictions to freedom of movement and new police powers. Such measures – even when entirely justified and proportionate – can of course affect people’s livelihoods and security, their access to health care, to food, water and sanitation, work, education, and company with others, and measures need to be taken to mitigate any such unintended consequences and minimise the human rights impacts of such measures.

The human rights impacts of both the pandemic and measures deployed by States to tackle the pandemic have been extremely wide-ranging. This includes, for example, the following: widespread closure of schools has interrupted the education of more than 1 billion children; COVID-19 has spread rapidly in many detention facilities, with the death of many prisoners and other detainees; unemployment and food insecurity have risen to unprecedented levels in many States during this time; rates of violence in homes have been escalating, particularly as women have been confined at home with abusers, without access to shelters and other services; strategies to contain the virus are difficult for those without good quality safe housing, as physical distancing, self-isolation and handwashing are impossible for the homeless or residents of slums where lack of access to clean water and sanitation is a fundamental issue; and differential access to COVID-19 vaccines means that billions of people worldwide, in the poorest countries, are more vulnerable to the virus, and the unequal distribution of vaccines is deepening inequality and reversing decades of hard-won progress on human development.

In addition, many States have committed human rights abuses under the pretext of controlling the COVID-19 pandemic. An Amnesty International report, ‘COVID-19 Crackdowns: Police Abuse and the Global Pandemic’ documented cases in 60 countries where law enforcement agencies committed human rights abuses in the name of tackling the virus, including cases in which people were killed or severely injured for allegedly breaching curfews or lockdowns, or for protesting against detention conditions. They also highlighted patterns of racial bias and discrimination against minorities in enforcement of COVID-19 regulations. UNESCO has highlighted particular risks to journalists’ safety and wellbeing during the pandemic, with reduced external scrutiny of States’ conduct, and the public health risks arising from misinformation and restrictions upon independent journalists’ ability to provide reliable, life-saving information during the pandemic. And human rights defenders have reported that the pandemic has created more leverage for business to commit abuses, with more limited oversight than ever before.

At the same time, many of the mechanisms for highlighting or preventing breaches of international human rights law have themselves been operating under restrictions given the pandemic. UN Special Procedure mandate-holders and international fact-finding missions have been unable to travel into countries, or have had severe delays to planned visits. States have often been meeting remotely, not in person. There are particular challenges for international human rights lawyers who have clients currently detained in custody or unable to travel from their countries, given the absence of secure, confidential communications. These issues will continue to loom large in international human rights law in 2022.

Additional key themes to watch in 2022 include international criminal justice, and the strategy which the new prosecutor of the International Criminal Court (ICC), Karim Khan KC, adopts. Recent decisions, such as the September 2021 announcement of a formal investigation into crimes against humanity allegedly committed in the Philippines as part of President Duterte’s ‘war on drugs’, or the September 2021 announcement by the ICC prosecutor that his office will not resume investigations into alleged crimes committed by the United States’ forces and agents in Afghanistan, indicate some likely issues to watch in the coming months. In addition, the ICC prosecutor has appointed a number of special advisors whose focus is upon topics including sexual violence in conflict, crimes against children, slavery crimes, and Darfur. Practitioners should also be alert to developments in universal jurisdiction, which is increasingly being relied upon as a substitution for an embattled ICC.

As trade and investment become increasingly global, multi-national corporations and other businesses are having a much greater impact on the lives of the communities in which they or their supply chains operate. Methods of strengthening United Nations Guiding Principles on Business and Human Rights, the OECD Guidelines for Multi-National Enterprises and the Equator Principles are considered against the backdrop of the UN’s sustainable development goals.

Fast-moving developments are likely to continue to be seen in respect of environmental rights and socio-economic rights. The growing trend in recent years to deploy Europe’s human rights protection systems – particularly the European Convention on Human Rights, the European Social Charter and the Bern Convention - to tackle environmental issues is likely to continue. The devastating socio-economic impact of the COVID-19 pandemic is likely to be a focus of much work in the coming months.

International human rights issues continue to be litigated in important cases in regional courts and the Privy Council. Key cases to watch in the coming months include the awaited judgment of the Inter-American Court of Human Rights in a case against Colombia concerning the abduction, rape and torture of a female journalist; the Privy Council’s awaited decision over the issue of whether same-sex marriage should be legalised in the Cayman Islands; former South African President Jacob Zuma’s attempt to litigate before the African Court on Human and People’s Rights; and the first challenge to the legality of US targeted killings before the Inter-American Commission, brought by two Yemeni families attacked by drone strikes.