Essay by Muhammad Ali

Leiden Law School

Advanced LLM Public International Law (2020-2021)
Professor: Helen Duffy

Human rights law does not, and perhaps cannot, keep pace with reality.

Human rights for those who believe in them embody the promise of a better world. They are, in
Samuel Moyn’s word, the current “last utopia.”1 From the late 1970s, they became the language
to articulate high moral precepts in the political sphere, and they displaced alternative utopias.2
The wave of human rights in the 1970s set aside the conventional and fundamental principle of
state sovereignty. Instead, it put an individual human into the center of the debate and argued about
the individual's right against his/her State. It was the period of 1970s when human rights took off
as a global phenomenon.3

The UN Charter provides the first guarantees of human rights and fundamental freedoms within a
global treaty, albeit in general and indeterminate language.4 The immediate follow-up to the
Charter was the adoption of the non-binding Universal Declaration of Human Rights (UNDHR)
in 1948, eventually followed in 1966 by adopting two UN Covenants, the ICCR and its first
protocol and the ICESCR. These three instruments are often referred to as the International Bill of
Rights. International Bill of Rights urged the states to respect their citizens against any violation
and therefore challenged the sovereignty principle at that time.

Human rights evolvement in climate change, LGBT rights, and women's rights substantially show
how human rights provisions can be used in contemporary issues. However, there are certain
criticisms against human rights law that it cannot keep up with the pace of reality.

1. The Disintegrated Creation of International Human Rights Law

A principal justification of international human rights is to provide a normative inspiration of

mutually agreed standards of humanity that all states should respect. It is contended that
international human rights law has become cumbersome and fragmented due to its infinite
proliferation.5 This allegation of creation has a normative and an institutional aspect: Normative
increase arising from the numerous texts adopted at the UN, EU, AU, and other sub-regional levels,

1
S.Moyn, The Law Utopia: Human Rights in History, Harvard UP, (2010).
2
Moekli, supra note 5, at 41.
3
https://www.amnesty.nl/content/uploads/2016/12/debating_the_endtimes_of_human_rights.pdf.
4
UN Charter, Art 1(3).
5
F. Viljoen, Contemporary Challenges to International Human Rights Law and the Role of Human Rights
Education, 44 DE JURE 207 (2011).
6
and institutional abundance due to the creation of a various treaty bodies and other institutional
mechanisms.7

Regarding normative expansion, it is certainly true that many general and group-specific human
rights texts/treaties have been adopted.8 Since adopting the UNDHR, the UN and other regional
organizations adopted a wide range of human rights-specific treaties and other documents,
covering the rights of children, women, disabled people, refugees, and detainees.9 The adoption of
two Covenants indicates to the failure to adopt a single binding text and scratches the start of
further norm creation.10 The UN human rights system is now composed of nine significant
treaties.11 This global network is interlaced into a analogously complicated normative and
institutional network at the international and regional level.12 Are these corresponding networks
equally reinforcing and harmonizing, or are they competing with each other and do they constitute
unneeded repetition?13

On the one hand, for human rights victims, the normative diversity presents a authentic post-
modern supermarket full of forum-shopping opportunities.14 On the other hand, for States, the
normative background may present a complex dilemma from which they have to develop a
benchmark against which to measure their own laws and practices.15

Two of the most projecting concerns in the last two decades have been the rights of persons with
HIV and discrimination against persons based on sexual orientation and gender identity.16
Although significant soft law standards have been expanded in the form of the 1998 International
Guidelines on HIV the 2007 Yogyakarta Principles on the Application of Human Rights in relation
to sexual orientation and Gender Identity. These standards have not been transformed into binding
state obligation.17 Considering this, international human rights law reflects the distress of certain
societies and political elites to talk openly about sex and reinforce openly articulated or implicit
bias and homophobia.18 While current treaties have been understood to cover some issues of
concern,19 and several UN and African Commission special mechanisms have added towards state

6
See e.g., the 2003 Southern African Development Community (SADC) Social Charter and 2008 Protocol on
Gender and Development; and the 2006 Protocol on the Protection and Assistance to Internally Displaced Persons to
the Pact on Security, Stability and Development in the Great Lakes Region (of the International Conference on the
Great lakes Region).
7
F. Viljoen, supra note 31.
8
Id.
9
Id.
10
Id., at 210-212.
11
Id.
12
Id.
13
Id.
14
Id., at 213-214.
15
Id.
16
Contemporary challenges to international human rights law and the role of human rights education.
https://repository.up.ac.za/bitstream/handle/2263/16669/FViljoen_paper_2011.pdf?sequence=1&isAllowed=y.
17
Id.
18
Id.
19
The decision of the UN Human Rights Committee, Communication 488/1992, Toonen v Australia,UN Doc
CCPR/C/50/D/488/1992 (1994-04- 04).
accountability for violations on the stated grounds , this was done on ad-hoc and inconsistent
basis.20

As far as the institutional aspect of expansion is concerned, it is true that the normative network
of standards gave birth to nine UN treaty bodies.21 States' contentions are that their reporting
responsibilities under nine different UN treaty bodies and further regional bodies are overly
burdensome are supported by the overwhelming reporting cycles in place.22

2. Exceptionalism and normalization of exceptions

Several prominent human rights treaties seek to minimize violations during emergencies by
authorizing states to “derogate”—that is, to suspend certain civil and political liberties—in
response to crises. The drafters of these treaties envisioned that international restrictions on
derogations, together with international notification and monitoring mechanisms, would limit
rights suspensions during emergencies. 23

However, since 9/11, the world has witnessed an increased use of exceptions to waive some of the
international treaties' rights. The US interprets the attacks on September 11, 2001, as acts of war
against western civilization. They find that exceptional security measures are necessary to protect
the liberal democratic way of life.24 During this, the US has captured the fighters and transferred
them to illegal detentions; a unfair trial was given to such fighters, US forces, specifically, the
CIA, tortured the captured prisoners (Abu Zubaydah case). The US argued that certain rules, even
torture, can be used in the situation of war, though it should be noted that torture is strictly
prohibited under international law from which no derogation is permitted; still, the US tortured the
captured fighters.

Another area in which such exceptionalism is often practiced is the financial crisis situation, where
the government may relax certain socio-economic rights. The economic crisis in 2008 was not
inevitable, and the discussion of it often obscures the fact that it was avoidable and resulted from
a range of unscrupulous practices in the property and financial markets.25 Similarly, individuals,
corporations, and governments' responses involve decisions that must take place within the
constraints of the key human rights provisions in domestic constitutions and international law. As
Saiz points out, “despite the obvious human rights dimensions of the crisis, human rights have
barely figured in the diagnoses or prescriptions proposed by the international community.”26

20
The establishment by the African Commission of the Committee on the Protection of the Rights of People Living
with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, in 2010 (ACHPR/ Res 163
(XLVII)2010).
21
F. Viljoen, supra note 5, at 212.
22
Id.
23
M.Emilie et al, Emergency and Escape: Explaining Derogations from Human Rights Treaties, International
Organization 65, 2011, pp 673–707.
24
T. Curley, Normalizing the Exception: Governmentality, Legal Discourse and Post-9/11 U.S. Security (2011).
25
B. Mclean, All the Devils Are Here: The Hidden History of the Financial Crisis (2011).
26
I. Saiz, Rights in Recession? Challenges for Economic and Social Rights Enforcement in Times of Crisis, 1 J.
Hum. Rts PRac. 277, 280 (2009).
Human rights analysis, he points out, has also been largely absent from the public debate around
the crisis and, even human rights advocates, have failed to engage in any depth with this question.27

3. International human rights law disregarded poor

It is contended that international human rights law has not been active in altering the situation of
those most underprivileged of the necessities of life.28 For example, there is no general acceptance
that poverty is a violation of human rights.29 Under international law, two key normative routes
have been explored to address the underprivilege’s plight: "socio-economic" rights and the right
to development. In both international law developments have been miserably insufficient.30

When socio-economic rights were provided as part of international human rights law under the
ICESCR, they were dealt differently from other (civil and political) rights. Notwithstanding the
UNGA’s request in 1948 to the Commission on Human Rights to make a sole Covenant
encompassing both civil, political and socio-economic rights, it soon became apparent that socio-
economic rights would be contained in a distinct text.31 When it was ultimately adopted in 1966,
the ICESCR provided for non-enforceable and non-justiciable rights, subject to enlightened
recognition.32 As individual complaints were not permitted, monitoring of the treaty was through
state report an independent treaty body was only established in 1985.33

4. Double Standards – Duplicity

In 2014, Human Rights Watch head Kenneth Roth argued that the struggles the ICC has confronted
in indicting President Kenyatta, and in safeguarding legitimacy in Africa, should not make us lose
hope in the Court’s legitimacy.34 But the appearance at the ICC of a head of a State of great powers
seems unconceivable.35 President Obama publicly insisted the US soldiers in Mali need have no
fear of the ICC. Indeed, effectively opposing pressure to join the ICC may be seen as a constructive
sign of great power status. Furthermore, Trumps sanctions against the ICC proves such double
standards at play.

Furthermore, the selective applicability of R2p in certain situations has led many States to be
cynical about its potential as a new human rights norm.36 Some doubted that R2P was a post-
Kosovo cover for NATO-led regime had already led to R2P being effectively shattered within the
UN system after 2005.37

27
Id.
28
F. Viljoen, supra note 5, at 221.
29
Id.
30
Id.
31
Id., at 221-223.
32
Id.
33
Id.
34
S. Hopgood, The End times of Human Rights 11 (2013).
35
Id.
36
Id.
37
Id.
Without the threat of tremendous power pressure or even intervention, the chance of a coerced
appearance at the ICC is small. This means if a State is a great power, that State is effectively
exempt from justice. The world is left with a constitutively unfair system and therefore, at some
deep level, unfair, destabilizing the whole idea of global norms and laws and providing an easy
target for the perpetrators of abuses to go unpunished.38 It is irrelevant how many states sign the
Rome Statute or R2P. There isn’t really a norm if the US and China are not on board.39

Do I agree with the statement ‘human rights do not and perhaps cannot keep pace with reality?
Yes, I agree with this statement. Although I mentioned certain challenges being faced by
international human rights law, few challenges need to be mentioned. States are blatantly involved
in violations of core human rights that include the right to life, and torture; Donald Trump, in his
speech, said that “I’d do much worse than torture and torture works”40 these remarks cannot be
accepted towards developing human rights. US practices in Guantanamo Bay prison show that
strong states can go away with such violations, other powerful states, China, India, and Russia, are
in violations of international human rights law, but no one dares to question.

Furthermore, the rights to equality and eradication of poverty have shown that most people in this
world still suffer from their fundamental rights. Hafner Burt argued that “human rights are
observed best in states that need them least.” This is true from my personal experience, the village
I come from in Pakistan, people are unaware of their core fundamental rights right to justice fair
trial rights) socioeconomics are from reality there. Furthermore, the rise of Artificial intelligence
and biotech, big data, and worsening climate change still must be addressed. The current
framework of international human rights law is seen as sluggish and sturdy in this fast-moving
world economy.

38
Id.
39
Id.
40
I. Foulkes, Are we heading towards a 'post human rights world'? (2016) available at
https://www.bbc.com/news/world-europe-38368848.