Louis-Philippe F. Rouillard:
The Enlargement of Human Rights in “Situations of Exceptions”
As armed conflicts acquired extraordinarily complex features,
whereby both international and non-international armed conflicts are
fought while civilian authorities are trying to rebuild themselves
along the lines of the respect of international norms of human
rights, there appears a wide legal void between the application of
international human rights law and international human rights norms.
This is because the charters of human rights or constitutional
guarantees of national institutions are intended to apply at all
times, but can be suspended in times of martial law, in areas such
as freedom of association, etc. This “suspension” takes place in
certain countries over the course of decades to maintain the
government in power. Since the LOAC do not apply in cases of
internal tensions, a juridical lacuna or gap results where neither
international conventions nor the LOAC apply.
To remedy this situation, many have proposed systems to bridge this
gap. But efforts have greatly been supported by Professor and Judge
Theodor Meron who presented a project for the adoption of
international instruments that would guarantee the respect of
fundamental rights (e.g., the right to life). His argument is based
on the fact that the LOAC, like human rights, have in large part a
common root both in terms of rationae personae and
rationae materiae obligations and that they are based on the
same notion: that of humanity.
He proposes a convention that would state those fundamental rights
that cannot be taken away under any circumstances, whether in peace
or in armed conflicts. In fact, he proposes a third Protocol to GC
1949 that would list the rights of article. 3 common to the
Geneva Conventions of 1949 and the guarantees of article. 75 of
their 1977 First Additional Protocol and article 4 of
their 1977 Second Additional Protocol, as well as the common
rights listed in regional and universal legal instruments.
This reasoning may disturb some who believe that state control and
national sovereignty have already been threatened enough without
creating even more obligations for all involved. But, peace and war
are not separated by a thin line on the ground. There are different
phases to the state of war ranging from economic wars to unlimited
total war, passing through cold wars and small wars. Each hold a
place on the scale of conflicts up to absolute peace. The rest of
the spectrum includes a relative peace, in which the world is always
in a state of tension, thereby justifying the preparation of
international instruments for a state of armed conflict that is not
what is called a “hot war” -- the use of armed force under all its
Whatever our take, the trend is toward the enlargement of human
rights in peacetime and the protection of victims in times of armed
conflicts. Events such as the Chechen crisis of 1991 and of 1995
have already pressed the issue, but this has given the legal debate
a life of its own. More recently still, the intervention in
Afghanistan (2002) and Iraq (2003), and Lebanon (2006) if justified
in part by a much arguable theory of pre-emptive self-defence, have
been also justified on the basis of the protection of human rights
Therefore, this article will explore the common understanding of the
current norms of the international protection of human, their
regional protections from a comparative point of view, the norms of
human rights applicable in armed conflicts, the protection of human
rights at all times, the Turku Declaration and the
Declaration of a Minimum Humanitarian Standard. This will lead
us to conclude on the state of applicable rights under contemporary
norms of international, international humanitarian and international
human rights law and to evaluate the project of creating a final,
comprehensive and politically viable international instrument of a
universal type protecting human rights through the legal void of
these branches of international law.
The International Protection of Human Rights
Human rights do not cease to exist during a period of armed conflict
or, even less, during periods of internal disturbance, tension or
trouble such as terrorism. International conventions exist that
define the minimal rights that protect human beings. The problem is
that while these norms protecting human rights continue to exist,
some can be suspended for the duration of an emergency.
But these instruments all possess derogatory clauses that permit to
suspend some rights. Note that a suspension does not mean that it
ceases to exist: on the contrary it means that it continues to exist
but it application is suspended in part or in whole and
therefore limited. Therefore, international law has international
conventions (i.e. International Covenant on Civil and Political
Rights and the
International Covenant on Economic,
Social and Cultural Rights,
applicable to its members whatever their region may be, and regional
conventions, applicable to only a number of states regrouped under
geographical features (i.e. American Declaration of the Rights
and Duties of Man,
American Convention on Human Rigths,
European Convention for the Protection of Human Rights and
African Charter on Human and Peoples' Rights ).
The instruments that do not have derogatory clauses have limitative
clauses that rest on the principle of legality. Such clauses can be
found at article4 of the International Covenant on Civil and
article 27 of the American Convention on Human Rights
and 15 European Convention on Fundamental Human Rights and
To these measures, one could add the proposed derogatory clauses of
article 4(b) of the Charter of the Arab States League
and article 35(1) of the Convention of the Commonwealth of
Independent States (CIS).
But even instrument not possessing derogatory clauses possess limits
based on the principle of legality, such as in the case of the
International Covenant on Economic, Social and Cultural Rights
or the African Charter on Human and People’s Rights at its
articles 9(2) and 10,
or with general limitation clauses such as article 30 of the
Universal Declaration on Human Rights. The latter states :
“Nothing in this Declaration may be interpreted as implying for any
State, group or person any right to engage in any activity or to
perform any act aimed at the destruction of any of the rights and
freedoms set forth herein”.
In the former case of legality clauses, the African Charter
states: “within the law” and “provided that he abides by the law”.
The problem in such case is to define what an emergency consists of
or what the limits imposed by the law can be. Article 27 (Suspension
of Guarantees) of the American Convention provides
such a definition, stating an emergency as one of: “time of war,
public danger, or other emergency that threatens the independence or
security of the States party” and follows by clearly saying that the
guarantees of the American Convention can only be suspended
“for the period of time strictly required by the exigencies of the
By opposition to this approach, Article 15 of the European
Convention permits to take the derogatory measures necessary
in “In time of war or other public emergency threatening the life of
The problem with such a liberal definition is obviously that it
leaves a large margin of appreciation to the States as to know
whether there exists a public danger menacing the life of the
The most interesting example concerning the regime of the Council of
Europe’s European Convention is that of the Case of
Ireland v. United Kingdom.
In this affair, the reach of Article 15 was examined by the European
Court of Human Rights in a State to State request of the government
of Ireland, alleging that the 1922 law of the United Kingdom
concerning the emergency powers on the civilian authorities and the
systematic practices of the United Kingdoms’ officials on Northern
Ireland’s soil contravened Articles 2 (Right to Life), 3 (Protection
against torture and cruel and inhumane treatments), 5 (Deprivation
of Liberty) and 14 (Non-discrimination) of the European
It must be noted that at the time of this affair, only Protocols
1 and 2 to the European Convention were in force.
Referring to Article 15, the Irish Government argued that Her Most
Britannic Majesty’s measures largely over-stepped the reach of the
strict exigencies of the situation, since these measures were not in
accordance with international law, as stipulated by article 15.
In the second part of its request, the Irish Government furthermore
argued that the Law of 1972 on Northern Ireland, attributing large
powers to the Northern Ireland Parliament concerning the use of
British Forces, contravened article 7 (Nullum Crimen Sine Lege).
The European Court of Human Rights based itself on the previous
claims of the first Case of Cyprus,
the Case of Greece
and on the Case of Lawless,
and judged that the state concerned was best placed to decide the
necessary reaches of a derogation, even though that derogation was
not unlimited and subject to judicial revision by stating:
“ It falls in the first place to each Contracting State, with its
responsibility for "the life of [its] nation", to determine whether
that life is threatened by a "public emergency" and, if so, how far
it is necessary to go in attempting to overcome the emergency. By
reason of their direct and continuous contact with the pressing
needs of the moment, the national authorities are in principle in a
better position than the international judge to decide both on the
presence of such an emergency and on the nature and scope of
derogations necessary to avert it. In this matter Article 15 para.
1 (article 15-1) leaves those authorities a wide margin of
appreciation. Nevertheless, the States do not enjoy an unlimited
power in this respect. The Court, which, with the Commission, is
responsible for ensuring the observance of the States' engagements
(Article 19), is empowered to rule on whether the States have gone
beyond the "extent strictly required by the exigencies" of the
crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para.
22, and pp. 57-59, paras. 36-38). The domestic margin of
appreciation is thus accompanied by a European supervision. ”.
As a result, the court refuses to allow the argument of the Irish
Government and recognised that the actions of British officials did
not over-step the strict necessity of the situation.
It follows from this decision that the States is tributary of
adjudging the reach of the derogation it intends to take. This
margin of appreciation left to the State makes it both judge and
party, although subject to judicial revision, and therefore creates
quite a dangerous precedent. As remarked the renowned Canadian
jurist L.C. Green, the Court in effect : “ … held that the burden
of proof was on the complainant, and that the standard to be applied
was ‘beyond reasonable doubt’ (…) the chances of a Party being found
guilty of wrongly declaring an emergency are somewhat remote… ”.
Not only did the Court agreed in full bench to this benchmark ruling
on this score, but not even an obiter dictum suggested that
the Court could have been convinced otherwise if, in the use of its
discretionary powers, the United Kingdom had exceeded and/or
continued to exceed the restrictions imposed by Article15.
The Court seems to have kept firmly in line with its decision of the
Case of the SS Wimbledon,
where it opined that it cannot, nor even should contemplate such
situations where it would have to interpose its judgement in lieu
of the States.
It is interesting to note that this is totally opposed to the
approach of the Inter-American system, where the Court did not
hesitate to substitute itself to States in order to determine the
limits of the suspension of guarantees in the American Convention
and to objectively define what constitute a war, a public danger or
a situation of crisis menacing the independence or security of the
State. In its advisory opinion of the Habeas Corpus in Emergency
the Inter-American Court presented the reasons that could be invoked
to claim the suspensions of Article 27.
In its opinion, the Court takes the direct approach and clearly
announces that rights cannot be denied or suspended unless the
circumstances leave only this sole recourse to preserve the most
fundamental values of a democratic society.
The Court therefore puts the legitimacy of the democratic system of
government as the ruling principle when it comes to the evaluation
of the legitimacy of the use of derogatory measures. It further adds
in the same paragraph that the suspension of guarantees may not be
dissociated from the “effective exercise of representative
democracy”, and that any use of derogation in the aim of undermining
a democratic system is an illegitimate use of Article 27. Non
content with this, the Court finally opined that the exercise of
democratic rights can only be suspended if the strictest conditions
of Article 27 are met. By this, the Court states without the inkling
of a doubt that it meant : “rather than adopting a philosophy that
favors the suspension of rights,
establishes the contrary principle, (…) rights are to be guaranteed
and enforced unless very special circumstances justify the
suspensions of some, and that some rights may never be suspended,
however serious the emergency.”.
Contrary to the European approach, which seems to permit the wider
latitude possible to the State with the reservation of judicial
review, albeit only subsequently to a previous action of the State,
the Inter-American Court emitted its opinion before any situation
concerning such cases reached it and choose to apply a stricto
sensu interpretation of the suspension clause of Article 27 of
its American Convention. It is also capital to note that the
Court did not authorise the proscription, full interdiction of
exercise or the eradication of a right ; at the most, the Court
allows the State meeting the strict condition of Article 27 to
suspended the exercise or to limit the full and complete exercise of
the right in question. The rights in themselves survive this regime
of suspension and are deemed inherent to the human being,
and therefore inalienable.
These approaches of the Inter-American and European system are
distanced in part by the approach of the African Charter.
Still, one must emphasise that it is so in part only because
while the African Charter adopted a new approach by including the
rights of collectivises into its framework, it was neither the first
nor the only one to include individual, economic, social and
cultural rights with obligations in a regional system of protection
of human rights.
The American Declaration on the Rights and Duties of Man
incorporate respectively these at its Articles XIII, XXIX, XXX, XXXI
et XXXIV : the right to benefit from cultural life in one’s
community (XIII); the right to social security (XVI), the obligation
of having an individual deportment permitting the development of the
potential of others (XXIX); the obligation to support parents (in
particular the aide of children and the honouring due to parents)
(XXX); the obligation to receive at the minimum a primary education
(XXXI) and the obligation to serve the community and the Nation
The Draft Charter of Fundamental Rights of the European Union
also incorporated some of these notions. As does, in a more
restrictive measure, the rights and obligations to participate in
the cultural and intellectual life of the Charter of the Arab
States League at its Article 35: “Citizens have a right to live
in an intellectual and cultural environment in which Arab
nationalism is a source of pride, in which human rights are
sanctified and in which racial, religious and other forms of
discrimination are rejected and international cooperation and the
cause of world peace are supported.”.
Nonetheless, it is exact to claim that the African Charter
seems to accord a prominence to these rights and that its dialectic
of individual rights as opposed to collective rights in much more
pronounced than in other systems.
Still, the writing of Articles 9(2) and 10 forces one to ask himself
if the protections of the African Charter are not illusionary.
The question is not solely or the abstract : in determining the true
force of the legal limitation clauses, one can discover if the
African Charter is a juridical instrument or a political
instrument serving the ends of non-democratic regimes. The problem
of the African Charter was, at first, that its African
Commission on Human and People’s Rights had not, for the longest
time after its implementation, had the occasion of pronouncing
itself on the important question. Rather, indication of its
potential was given through Articles 60 and 61 as to its capacities
to acquire a viable juridical strength opposable to States. Article
60 reads as directing principles : “ The Commission shall draw
inspiration from international law on human and peoples' rights,
particularly from the provisions of various African instruments on
human and peoples' rights, the Charter of the United Nations, the
Charter of the Organization of African Unity, the Universal
Declaration of Human Rights, other instruments adopted by the United
Nations and by African countries in the field of human and peoples'
rights as well as from the provisions of various instruments adopted
within the Specialized Agencies of the United Nations of which the
parties to the present Charter are members. ”
And Article 61 attempts to enlarge this reach by stating: “ The
Commission shall also take into consideration, as subsidiary
measures to determine the principles of law, other general or
special international conventions, laying down rules expressly
recognized by member states of the Organization of African Unity,
African practices consistent with international norms on human and
people's rights, customs generally accepted as law, general
principles of law recognized by African states as well as legal
precedents and doctrine. ”.
It is important to note here that while the African Court was
created following the redaction and adoption of its founding
Protocol, its article 7 retakes expressis verbis the
notions of the African Charter stating that in its
deliberation: “the Court shall be guided by the provisions of the
Charter and the applicable principles stipulated in Articles 60 and
61 of the Charter.” .
There is therefore a need to set and determine the legality
principle from other instruments. An extraordinary analysis of this
kind was made by A.L. Svensson-McCarthy and permits to define in a
large measure this principle of “legality”.
First, the question is to know what sources of law are included in
At the universal level, the principles invoked flow from Articles 29
and 30 of the Universal Declaration. The question of legality
does not pose serious problems when concerning the elaboration of
the both International Covenants of 1966.
When it came to refer to Articles 29 and 30, the debate concerning
the legitimacy principle and its link with legality addressed mainly
the notion that rights could only be limited by law.
Many countries of the British Commonwealth founded this
sentence much too limitative in the residual power that it left to
the States. The principal argument was that there existed more than
the sole means provided by law to impose justified limits on the
exercise of human rights in the Universal Declaration and that often
the law itself was the very source of contravention to human rights.
These countries preferred a mention to the concept of justice, which
had in their eyes a superior level to that of the law. After many
discussions, Article 29 incorporated nonetheless the notion of law
in its paragraph 2, but the criteria of satisfaction of the just
exigencies of moral, public order and general good were adjunct to
it in order to complete it. Further to this debate, common law
countries asked themselves whether the notion of law included solely
the notion of statutory law or also the non-written notions often
found in the stare decisis system of case law and soft law.
The decision of the participants was definitive on the matter in
that it included all sources of laws, whether of a traditional, case
or statutory source.
It results from this interpretative statement that the notion of
legality implies a notion of legitimacy, that is a pre-established
legal norm of law originating from a competent legislative
authority. This was deemed necessary in order to protect individuals
from abuses and arbitrary actions of the executive and judiciary
branches of governments. Also, the criteria of the exigencies cited
above guarantee that the limitations are only legitimate if they
meet the norms justifiable in a just and democratic society. Since
the Universal Declaration made a direct reference to the Charter
of the United Nations in its Article 29(3), by stating that
these rights and freedoms cannot be fully exercised in contradiction
to its aims and principles, it appears clearly that the legitimacy
of the universal system has a specific and independent sense.
At the regional level, this question of legality has been retaken in
the Inter-American System in Article 30 of the American
Convention, whereby: “The restrictions (…) may not be applied
except in accordance with the laws enacted for reasons of general
interest and in accordance with the purposes for which such
restrictions have been established.”.
And this question was rapidly addressed and dealt with, at
unanimity, by the advisory opinion of the Inter-American Court at
the request of the government of Uruguay: “[it]
means a general legal norm tied to the general welfare, passed by
democratically elected legislative bodies established by the
Constitution, and formulated according to the procedures set forth
by the constitutions of States Parties for that purpose ”.
For the Inter-American Court, there exist a clear link that is
inseparable between legality, democratic institutions and the rule
of law. It reaffirms the notions of the Habeas Corpus
The European Convention follows a similar line of thought
when concerned with the principle of legality. In the Case of
Silver and Others,
the European Court of Human Rights confirmed the notion of its
previous cases whereby the “conditions, restrictions or sanctions of
the law” are to be interpreted first as a reference to the fact that
interferences in the exercise of human rights must have a juridical
base in national law and that this must be a priori because
the Court confirms only later that this includes common law with
The concept of legality forged a minimal norm of the respect of
national laws within the larger interpretative concept of
international instruments when concerned with the application of
derogatory norms. Still, such a norm remains incredibly fragile in
the European system, in particular in the case of countries having a
centralised government or a unitary method of governance. Through
the concentration of power, ones concentrates the States’ decision
and influence in the determination of what constitute a legitimate
suspension of rights and a derogation to the European Convention.
Simply by restraining the protections given by the national
legislation, a State can easily overturned or circumscribe the
provision of the European Convention. Still, the basis of the
European Convention is that of a voluntary system of
ratification and therefore there is some understanding that States
do not forgo every aspect of their sovereignty upon ratifying it and
therefore interpretation is left in part to their margin of
appreciation, until review by the judicial process if necessary. As
such, we can therefore assert that their exist limitative systems of
derogation that permits to suspend rights and that the European
Convention’s system is in part as much as risk as even the
African Charter’s system if one considers only its own
limitation of legality. The American Convention system would seem
more established that these both at first glance.
But this would not be a complete understanding of these different
systems, as it would not take into account the very rights they
permit to derogate from and the limitations it permits to impose. As
opposed to the limitations of the general clauses and clauses of
derogations of the Universal Declaration and of the
International Covenant relative to Economic, Social and Cultural
at the universal level, and of the African Charter at the
regional level, both the European Convention and the
American Convention adopt the approach of the International
Covenant Relative to Civil and Political Rights. Article 27(2)
of the American Convention edicts : “ 2. The foregoing
provision does not authorize any suspension of the following
articles: Article 3 (Right to Juridical Personality), Article 4
(Right to Life), Article 5 (Right to Humane Treatment), Article 6
(Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws),
Article 12 (Freedom of Conscience and Religion), Article 17 (Rights
of the Family), Article 18 (Right to a Name), Article 19 (Rights of
the Child), Article 20 (Right to Nationality), and Article 23 (Right
to Participate in Government), or of the judicial guarantees
essential for the protection of such rights. ”.
By contrast, Article 15(2) of the European Convention
states : “ 2 No derogation from Article 2, except in respect of
deaths resulting from lawful acts of war, or from Articles 3, 4
(paragraph 1) and 7 shall be made under this provision”.
This compares to the International Covenant Relative to Civil and
Political Rights at its Article 4(2) which proclaims: “2. No
derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16
and 18 may be made under this provision.”.
On this comparative basis,
one can represent schematically the protection offered by each
system, whether universal, American or European by comparing which
rights are non-derogable in all and any circumstances. These cannot
be suspended, limited or otherwise infringed upon in any
circumstances or for any reason whatsoever.
synthesis of these non-derogable rights clearly shows that solely
the rights which are universally recognised, and those of the two
Covenants of 1966, due to their different reach are: the right
to life, the prohibition of torture and inhumane and degrading
treatment, the interdiction of slavery and the principles of
legality and non-retroactivity. Within the concept of legality, it
is important to note that none covers the right to an equitable
judgement and that the European Convention does not contain
the recognition of the legal personality..
It is possible, on this basis, to distinguish rights protected as
“fundamental rights and freedoms”, which are generally protected
within international universal or regional instruments, and a
“minimal non-derogable core” of human rights, which can perhaps be
seen as fundamental rights in a stricto sensu interpretation.
Those not part of this core may not survive limitations during
periods of emergencies and situations of exceptions.
Further, the question is to know whether one can claim a universal
application of these rights as their force of law remains to be
proven. Indeed, in the international legal regime, only customary
law is applied universally, while treaty law can only be opposed to
states which have ratified the conventions and treaties under
discussion. We must then discern between the rights opposable to all
and those opposable to the states which have signed and ratified a
treaty, this in accordance with their sources..
The first source applicable to International Human Rights Law is of
course the one that demonstrates the explicit consent of states to
be held accountable: treaty law. It is important to distinguish
between treaties, done in multilateral fashions of in a regional
setting, and declarations.
treaty is an agreement between two states or more, and/or with an
international organization. It is a negotiated and agreed document,
to which a state adhere freely upon ratification. A declaration is a
statement issued either by a state, in the case of unilateral
declaration of intent, or by an international organization to state
the intentions and aspirations of such an organization and its
members. A treaty is opposable to states and legal redress can be
obtained for its breach because it contains formal obligations to
which a state has voluntarily subscribed. A declaration is usually
not opposable to states; it provides for a restatement of a will or
an intention to reach some objective, but it itself, it does not
carry a constraint of opposability.
This, however, is not absolute: a declaration may become opposable
as would a treaty if it is recognized and adhered to by states,
either because they reached such a conclusion in agreement or
through the formation of a customary norm which recognizes its
evolution into an opposable norm of international law. The
American Declaration of the Rights and Duties of Man is such a
declaration which started as non-opposable to states members of the
Organisation of American States (OAS) in 1948 and became opposable
over time because the states member adopted it as a part of the
Charter of the Organisation of American States.
Further to this recognition, both the juridical organs of the OAS,
the Inter-American Commission on Human Rights and the
Inter-American Court of Human Rights have reached the legal
conclusion that it has become opposable to states.
Universal Protections Applicable Regardless of Regions
Since there are such cases of development from non-opposable to
opposable norms in a regional convention, the question becomes very
important with regards to the potential opposability of the
Universal Declaration of Human Rights made by the General
Assembly of the United Nations in 1948. As the title mentions, it is
a declaration and therefore, in principle, non-opposable unless
there has been a development. Three theses are presented in this
The first thesis presents the Universal Declaration as
opposable in the measure whereby its dispositions are based upon the
state obligations of the Charter of the United Nations..
The second gives it a limited opposability, non imperative as such,
whereby a violation to the Universal Declaration is not ipso
facto considered as illicit under international law if the state
takes corrective measures. A state which would not take such
measures would then become accountable for it. Finally, the last
thesis is that the Universal Declaration is opposable in full..
From the 1960s, already, some commentator argued the superior
character of this document since it was accepted at unanimity.
This acceptation without opposition is seen under this light as a
common will of the states to proclaim an opinio juris and
that its violation by a state would entail state responsibility
because of its violation to a norm of international ethic. Also,
these commentators argue that state practice proves with its
influence on all subsequent conventions of human rights and treaties
that it has by far surpassed the status of a simple decision by the
This argument is notably supported by a portion of academics and
practitioners of the time, whether from the West or the East. For
example, Blishtshenko declared in 1971 that the Universal
Declaration is not only a mandatory document with a moral value
but a document with a legal force, which implies the recognition of
its dispositions by states and their applications, even in case of
However, these seems to have been a tad premature, as it precedes in
the abstract without taking the limitative clauses into account,
whereby: “The Travaux préparatoires make it clear that the
overwhelming majority of the speakers did not intend (…) the
Declaration to become a statement of law or of legal obligations,
but a statement of principles devoid of any obligatory character,
and which would have moral force only.”.
Richard B. Lillich, a most renowned jurist of human rights and
humanitarian law, mentions that we can find in the debates of the
Travaux Preparatoires a suggestion from which the Universal
Declaration is considered a complement to the United Nations
Charter., or as an interpretative instrument, or finally as the
formulation of the general principles of law recognised by civilised
nations, as understood under Article 38(1)(c) of the Statute of
the International Court of Justice.
This later argument suffers from a lack of solid bases. As Lillich
remarks, the General Assembly of the United Nations does not have
the authority to interpret the Charter of the United Nations.
Furthermore, its recognition as a formulation of the general
principles of law also suffers from profound deficiencies. Indeed,
while one may take a liberal interpretation of article 38(1)(c) of
the Statute of the International Court of Justice to
recognise many sections of the Universal Declaration as
general principles or law, one cannot use this argument to
explicitly recognise by it a codification of these principles.
As a result, one must distinguish between the force of law of
treaties and of declarations. While treaties may be opposed to
states, declarations cannot unless one can prove that its status has
evolved in international law either through custom, practice or
opinion juris of states.
Of course, the Universal Declaration remains a matter of
controversy. And it is the more so because it has been adjuncted a
surveillance mechanism through Resolution 1503.
This resolution gives the Human Rights Commission a procedure by
which it can examines complaints of violations to human rights and
fundamental liberties. However, this procedure has a limited reach
and the extent of its resolution is often misunderstood as
all-encompassing. In fact, it does not give the Economic and Social
Council a power of condemnation over states, but rather a softer
power of inquiry and reconciliation. One cannot invoke the force of
law over a power of inquiry as this mechanism rests on the
cooperation of states.
Therefore, invoking Resolution 1503 to argue for the force of
law of the Universal Declaration would be erroneous in
premises. Therefore, one must conclude with the fact that, for the
foreseeable future, the Universal Declaration does not have
force of law.
However, this is not the cases of the 1966 Covenants, which
have been ratified by states and are treaties; as such, they are
clearly and unarguably opposable to states. It is true that the
universal mechanism it establish is weak,
since the Commission examining the communications made to it can
only draw the conclusion of the existence of a violation only after
all the national recourses have been exhausted.
Nonetheless, such a conclusion may lead to a reference to the
Security Council if the breaches are serious enough to entail a
breach of peace or a menace to international peace and security.
Nonetheless, the best hope of applying human rights, even though
their sources are mainly universal at first, seems to rest with the
regional instruments, such as those we have seen above.
For example, as one can see from the table of comparison of non-derogable
rights seen above, apart from the International Covenant Relative
to Economic, Social and Cultural Rights, it appears at first
that the European Convention protects fewer rights than any
other instruments. Indeed, solely the four rights enumerated above
can be seen as being non-derogable.
In the case of the European system of protections, the case law does
provide for a mature set of protections and does appear to have
proportionality and due diligence well-entrenched within its
corpus juris when concerning the right to life. Whether from the
Commission’s previous decisions, such as in the cases of Steward,
or of Cyprus v. Turkey
or the Court’s decisions such as in McCann,
the differentiation between lawful deprivation of the right to life
and unlawful ones has been extensively explored and have resulted in
a solid and logic system of law.
In the case of the right to freedom from slavery and servitude, the
Court has rarely had to deal with cases of forced or compulsory
labour and many of the cases sent to it were either frivolous or
groundless. Overall, the best known example is that of Van
Droogenbroeck, which concerned the obligation for a prisoner to earn
money during his detention in order to save a certain amount prior
to his release from prison.
In most other cases, it is clear that the member States of the
Council of Europe have had a low ceiling of tolerance for slavery
and servitude and have enacted and implemented the proper
legislation to curb abuses at the national level.
Where the European Convention is weak is definitely where it
concerns judicial guarantees. While the first two sentences of its
Article 7(1) are very comparable to that of Article 15(1) of the
International Covenant Relative to Civil and Political Rights,
its third sentence lacks the protection of guilty parties to benefit
from the lighter penalty available. Still, the guarantees do provide
for protection of ne bis in idem with the addition of Article
4 of Protocol 7,
and does provide for the principle of nullum crimen, nulla poena
Overall, these protections certainly are limited compared to that of
the Inter-American regime.
Perhaps where the Court held on the longest to a wrong
interpretation of the European Convention is where it
concerned itself with the right to freedom from torture, inhuman,
degrading treatment and punishment at Article 3. Too long did the
Court uphold its own interpretation of the case of Ireland v.
United Kingdom and too long did it impose an unduly strict
interpretation of a severity/intensity test. Too long it interpreted
the European Convention within its own syllogisms, and forgot
to add interpretative additions from applicable international law
such as the Convention against Torture. Only with the Case
of Aksov a breakthrough was achieved and the threshold of what
constitute torture has been lowered, finally applying not the
Declaration against Torture, but the Convention against
Meanwhile, both the Inter-American and the African systems are
developing, now with increasing speed since the adoption of
As such, through the development of regional systems, whole regions
have been stabilised in the application of human rights whether in
times of peace and troubles, such as Western Europe through the
1950s through the 1990s, despite the Cold War and terrorism, and
then in Central and Eastern Europe through the transitions of the
1990s after the end of the world bipolarity, or again in the
Americas after the end of ‘international socialism’ and the
development of democratic regimes. Even Africa, long-plagued by the
war by proxy and the trampling of human rights everywhere, does
progressive development of the respect of human rights appear to be
on the up-take.
However, these developments are in times of peace or internal
disturbances. The real question becomes to know what protections of
human rights do exist in times of armed conflicts.
Human rights applicable in armed conflicts
As opposed to universal or regional norms of human rights law, the
existence of an armed conflict is the sine qua non condition
for the law of armed conflict to apply. If the existence of a
conflict is not proven, one cannot invoke the protection of its
legal regime. Furthermore, the existence of an armed conflict,
especially in the early stages, is always difficult to prove. Let us
take as an example the most recent violence between Israel and
Lebanon, starting on June 25, 2006 by a raid of Hamas fighters
against an Israeli position on the border with Gaza and killing 2
Israeli soldiers and kidnapping one as hostage for a prisoner
At that stage, there was a use of force whereby terrorists crossed a
border from the territories of the Palestinian Authority by use of a
tunnel, emerged on Israeli soil, engaged Israeli forces and
retreated after accomplish parts or all of their objectives. Was
this an act that would fall under the premises of the law of armed
While this may be arguable as being so, it is not clear and the
argument to the opposite may be made. Indeed, while there has been a
clash of arms, there has not been a mention of a state of armed
conflict at that time. Since the attack came from another
semi-autonomous territories’ national, and since Hamas and the
Palestinian Authority are not High Contracting Parties to the
Geneva Conventions, nor the Additional Protocols, they
cannot claim its application to their fighters.
What would remain is solely the application of Article 3/common GC
1949, as this applies in contradistinction to international armed
conflicts to encompass all other kinds of armed conflicts.
This would however be a double-hedge protection for Hamas fighters
as this article also prohibits the taking of hostages, which their
member clearly committed and claimed after the fact. Regardless, it
is clear that the intensity and the seriousness of that particular
incident created an armed conflict, albeit one only covered by the
protections of Article 3/common GC 1949.
Following this incident, Israel undertook military actions on June
28, 2006 by entering the Gaza strip in an effort to rescue the
kidnapped soldier, root out insurgents and take out positions from
which Palestinians had been firing home-made Quassam rockets into
Israeli territory. On July 12, 2006, bolstered by the Hamas action
of June 25th, Hizballah fighters attacked an Israeli
position from Lebanon in Northern Israel. In this attack, 8 Israeli
soldiers were killed and 2 kidnapped. Again, as for the events of
June 25th, Hizballah is not a High Contracting Party and
the sole applicable instrument would be Article 3/common GC 1949,
for the same reason as above.
Israel then undertook harsh retaliation measures against Hizballah
targets and other targets that supported Hizballah. This resulted in
effect in attacks against the whole infrastructure of Southern
Lebanon and attacks on ports, airports and the capital of Bayreuth
in an effort to destroy means of displacements of the kidnapped
soldiers to recuperate them, destroy the support of Hizballah’s
infrastructure and stocks of munitions, destroy Hizballah’s
credibility and cripple its organisation and personnel while also
pressuring the Lebanese government to disarm Hezbollah. This
situation was further compounded by the fact that Hezbollah is
linked to Hamas and both are supported financially and logistically
by Syria and Iran. Furthermore, Hezbollah does have 23 elected
member of the Lebanese parliament on a total of 128 members, has the
only standing force beside the Lebanese army in Lebanon and, at the
time of the beginning of the hostilities, had two cabinet members of
the Government of Lebanon.
By the end of July 12, 2006, Israel had already retaliated and
warned of continuing military attacks. By the 13th, it
had bombarded Bayreuth’s airport and begun bombing the road
infrastructures and ports. By the 19th of July, ground
incursions took place along the border to secure an area against
Hezbollah rockets launching places.
By this point, Israel’s armed forces had used bombardments against
coastal installations, civilian infrastructure used for military
purposes (roads, bridges, electrical generation plant), destroyed
the offices of Hezbollah, deliberately targeted the head of
Hezbollah, destroyed over half of Hezbollah ammunition and rockets,
and continued its incursions within Lebanon, while stating that
troops will withdraw once the destruction of Hezbollah has been
accomplished. On the morning of July 21st, news reports
indicated 258 civilian killed with 582 wounded in Lebanon, while
Israel stated 19 military personnel dead and 15 civilian killed by
Hezbollah rockets targeting the tourist industry in Haifa and other
coastal cities of the north of Israel.
At that point, one notices that Israel does not ‘as such’
deliberately target Lebanese forces; its target is Hezbollah.
Nonetheless, the Lebanese army attempts to defend its territory
against the incursions of Israeli forces and against warplanes. The
result is that of a double conflict, asymmetrical in nature, but
nonetheless amounting to a international armed conflict, to which
the full regime of the Geneva Conventions and/or
Additional Protocols may apply (Lebanon has ratified both
Additional Protocols, while Israel has not signed nor ratified
The conflict ended with Hezbollah’s victory in strategic terms
against Israel (since its only objective was to survive the
onslaught and therefore point out Israel’s failure in its
eradication of the group) after a month of fighting and 116 Israeli
soldiers, 43 Israeli civilian lives, 530 Hezbollah’s fighters and
over 1500 Lebanese civilians killed. United Nation Security Council
Resolution 1701 put an end to the fighting, but Israel looks
occupied a ‘buffer’ zone until such time as the reinforced UNIFIL
mission fills its ranks with European Union forces and South-Asian
troops, all the while living with the illusion of disarming
Hezbollah and keeping Israel at bay.
The United Nations High Commissioner for Human Rights, Louise
Arbour, warned that both parties could be held liable for possible
Therefore, the regime protection would apply to all after the events
of July 12th, 2006. But what of the populations within
these two countries. During this state of war, what can Israel and
Lebanon do to their citizens, residents and foreigners and what are
they prohibited to do?
This is the whole dialectic of armed conflicts, whereby the rights
of combatants are protected and civilians are afforded protections
by the opposing forces, but whereby a state may decide to impose
harsh conditions such as evacuation, forced labour or conscription
on its own citizens.
This is because of the separation of the jurisdiction of
international humanitarian law, resting on the “Geneva stream” and
the protection from means and methods of combat from the “Hague
stream”, both applying only in periods of armed conflicts under
rationaes conditionis, tempi et loci. They attempt
to offer the maintenance of fundamental rights and freedoms through
their conventions and protocols.
However, its jurisdiction is limited to four situations:
international armed conflicts, non-international armed conflicts,
‘internationalised’ non-international armed conflicts and situations
of crisis. The application of the law of armed conflicts depends on
the intensity of the conflict, its geographical spread and its
In the case of international armed conflicts, the Geneva
Conventions apply to all states which have ratified them (all
but 2, if one excludes new states to which the law of treaty
succession applies or might be contested), and which edicts its
jurisdiction in article 2 common to these conventions, as well as to
Additional Protocol I under its article 1(3).
In the case of non-international armed conflicts, which are more and
more predominant, the situation becomes even harder as one must
evaluate the intensity of the conflict and the organisation of the
belligerents to know whether article 3 common to the Geneva
Conventions of GC 1949 applies and if it is complemented by
Additional Protocol II. This latter consideration is not only
concerning whether or not a state has ratified the protocol, but
because the level of intensity it requires is much higher than the
level required for the application of Protocol II.
As for article 3 common to the Geneva Conventions of 1949, it
is often qualified of mini-convention, as it contains the rights of
protected persons in all situations during an armed conflict of any
enumerating the basic protections against which combatants and
civilians are all entitled.
It is an unreductible minimum and is composed of four basic sets of
protections that we have identified above in times of peace or of
and enlarging its reach to other protections, such as that against
mutilations. Protocol II enlarges even more these protections
through its article 4.
But again, one must be clear. While article 3 common to the
Geneva Conventions of 1949 applies to all conflicts, Protocol
II only applies under the conditions of its article 1(1) which
edict : “1. This Protocol, which develops and supplements Article 3
common to the Geneva Conventions of 12 August 1949 without modifying
its existing conditions of application, shall apply to all armed
conflicts which are not covered by Article 1 of the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts
(Protocol I) and which take place in the territory of a High
Contracting Party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations
and to implement this Protocol.”
Only if under a responsible command and controlling effectively a
territory permitting the conduct of sustained and continued military
operations can the protections of Protocol II be invoked.
This is only attained by insurgent forces at the operational stage
of the “liberation phase”.
This is complicated enough in cases of non-international armed
conflicts, but become even more difficult to decide upon in the case
of ‘internationalised’ armed conflicts. This springs also from
and was confirmed in Tadic.
In effect, the problem sprung from the Cold War’s ‘war by proxy’,
whereby a third-party state supports one or the other of the
protagonists. This was the case in Nicaragua, when the United States
supported the Contras rebels against the Sandinista regime during
its civil war. The International court of Justice differentiated in
this affair the dependence of the contras from the effective control
of the American government on their actions.
From this differentiation, it determined that in an armed conflict,
the participation of a third state can implicate the
‘internationalisation’ of a conflict, but with regards to this state
In this case, the Contras were deemed to be subject only to article
3 common to the Geneva Conventions of 1949, while the United
States were subject to the application of the full range of the
The applicable regime must therefore be established with regards to
the party concerned and the offence concerned.
This was confirmed in the first instance of the Tadic case.
As in Nicaragua by the ICJ, the
International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991 (ICTY),
analysed the conflicts in the former Bosnian territories of
Yugoslavia in the light of knowing whether the Serbian forces of
Bosnia-Herzegovina remained under the effective control of the
government of the Federal Republic of Yugoslavia (RFY), in order to
determine if grave breaches of the law of armed conflict was
imputable to it..
It found that the RFY was not. However the Appeal Chamber took
another approach, asking instead if acts accomplished by non-state
agents can bring about state responsibility, ‘internationalising’ a
non-international armed conflict and in fact making it an
international armed conflict. This would bring about state and
personal responsibility of grave breaches of the law of armed
Confronting the test of responsibility of Nicaragua, the
Appeal Chamber of the ICPY distinguished situations where a state
mandates individuals to commit illegal acts from situations where a
state mandates a states to commit legal acts, but where such
individuals act ultra vires (outside of their range of
devolved powers). The Appeal Chamber concluded that article of the
International Law Commission’s Project on State Responsibility
imputed such responsibility on the Federal Republic of Yugoslavia. It
did so not because of a mandate of actions, legal or otherwise, of
the FRY over Bosnian-Serb forces in Bosnia-Herzegovina, but because
it found that the FRY had effective control over the Bosnian-Serb
As such, this created an internationalisation of the conflict, since
it now implicated directly the FRY as a party to the conflict and
made Tadic an agent of the state.
Therefore, the Geneva Conventions applied in full. If
Protocols I or II had been ratified, their regimes might have been
applicable, depending on the rationaes conditionis, tempi
As we can see, there is no doubt that there is a basic protection of
fundamental rights guaranteed in the legal regimes applicable to all
armed conflicts, albeit with major differences of jurisdiction and
application. The question is now to know what protections are
offered whilst no armed conflicts are taking place, but rather
during times of internal troubles, disturbances and emergencies,
which will be referred to as “situations of exception”.
In these cases, human rights may be limited or suspended and the
protections of international humanitarian law remain inoperative.
There is what is called the ‘gap’, the legal void, between
international human rights law and international humanitarian law.
The Protection of Human Rights at All Times
The legal void that exists in situations of exceptions is due to the
difference of application of the treaties pertaining to
international humanitarian law and international human rights law as
described above. However, not solely the jurisdiction is an obstacle
to the establishment of minimal norms of protection of human rights
applicable at all times, or “minimal humanitarian standard”.
Added to the limitation and derogation contained in the human rights
instruments we have seen with regards to international humanitarian
law, we must also consider the legal status of the non-state
entities it’s the context of the systems of protections of human
rights, and the fundamental limitation they carry with their
limitative clauses and derogation clauses.
Such groups are not bound by international or regional treaties; the
universal and regional mechanisms have only effects upon states
parties to their constituting treaties. Furthermore, human rights
treaties protect human rights in the context of the relation between
the individual and the state, not between individuals themselves.
While the preamble of the Universal Declaration and the
1966 Covenants recognise the individual obligation to promote
human rights, it does not explicitly give a legal responsibility
between individuals even in relation to a violation of this
While individual responsibility in international exists in some
treaties (e.g. slavery, genocide, international court of justice),
the United Nations’ Secretary-General has warned against seeing an
over encompassing obligation as this would give incentive for
repression against members of armed groups and this repression
itself would be contrary to the principles of the protection of
Also, the protection systems are themselves limited in effect
because they lack specificity in the breadth and width of the rights
protected. In fact, international humanitarian law provides a
clearer outlay of the rights protected than do most of the treaties
pertaining to human rights, but as they do not apply in situations
of exception, this does not help in providing for a clear
protection. In international human rights law, most rights and
freedoms are mentioned in general terms and are free to be
interpreted liberally or conservatively.
This legal void leaves an abyss where rights are lost to individual.
This situation has been known for long. Already in 1968, this
problem is recognised in Resolution XIII of the International
Conference on Human Rights held in Teheran from 22 April to May 1st
of that year.
For the next twenty years, the problem has been mentioned and
cursorily examined, but precious little was accomplished.
Under the efforts of Hans-Peter Gasser and Theodor Meron, and many
others who brought forth their contribution, efforts were made to
identified the rights to be protected. These authors converged
together at the Institute of Human Rights of the University of Turku,
Finland, and drafted the Turku Declaration.
The approach taken was that, under the quasi-universal character of
the Geneva Conventions of 1949,
the norms of human rights’ protection that it contained have become
opposable to all, even those states not party to the Geneva
Conventions, and even those who would attempt to denounce them since
the Vienna Convention on the Law of Treaties prohibits
denunciation or interpretative declarations incompatible with the
aims and principles of a treaty.
This lex specialis is even clearer as article 60(5) prohibits
such denunciation against treaties of a humanitarian character with
regards to the protection afforded by them to protected persons.
This reasoning is further pursued by stating also that no state
shall be absolved from responsibility for violations of obligations
of international law despite a denunciation if that obligation
exists independently of the denounced treaty, for example an
obligation of jus cogens or contained in another treaty not
Even if a customary norm is codified and that the treaty containing
this codification is denounced, the customary norm continues to
exist parallel to the treaty norm and must be submitted to.
This recognition of the customary norm is recognised in the Martens
Clause seen above
to remain under the principles of humanity and from the dictates of
These principles of international law are the lex corpus in
which custom evolves. But the Martens’ clause goes further by
associating this to the public conscience. To many who drafted the
Turku Declaration, amongst which Professor Meron, this
weights if not legally, at least morally, in a manner to force
states to recognise as universal the protections of human rights .
He bases his opinion on the Barcelona Traction Case,
in which the International Court of Justice recognised the erga
omnes obligations, meaning those obligations applicable to all
at all times. The interpretation from this case suggests that the
obligation to respect and to ensure respect contained in article 1
article common to the Geneva Conventions of 1949 would be
such erga omnes obligations, as applying to all and are
already accepted in the lex corpus of international law since
they have a quasi-universal recognition.
Since article 3 is recognised in a quasi-universal manner, it is
argued that the rights it contains are of such an elementary ethical
order and retake in so many international treaties of human rights
and humanitarian law that the convergence of these norms forms the
basis of a customary right applicable in situations of exceptions.
It is therefore aimed to bring together the fundamental rights seen
in the case of international human rights law and bring them
together with the basic human rights’ protections contained in
international humanitarian law in order to created a non-derogable
‘minimal humanitarian standard’, that is a core of fundamental right
that cannot be limited, suspended or violated at all times.
What is attempted is to created, through the unifying of the
Martens’ Clause, the inclusion of recognised norms of jus cogens
and of erga omnes obligations, is a renewed and modernised
version of the jus gentium.
This means that what is attempted is to create an ethical law system
based upon rules of natural law applicable to all at all times. It
is argued that an advantage of such a system would be to formally
recognise the international legal norms of natural law, which are
inherent to the individual,
leading to its absolute non-derogable character. This approach is
further supported by the American Declaration, which
recognises explicitly the principles of natural law
and of the African Charter which permits the African system
to found its applicable principles in other instruments as
interpretative sources in order to find the most favourable to the
individual safeguarding of human rights.
In so doing, this brings forth a universal interpretation of the
rights to be recognised and of their application.
This becomes even more so if one interprets erga omnes under
the guiding lights of articles 55 et 56 of the Charter of the
Still, it is the lack of specificity that remains problematic. While
the Charter of the United Nations and the Universal
Declaration draw the overall rights, it is the multi-lateral and
regional treaties, to which a relative few states are part of, that
determine the reach and jurisdiction of the protections contained
This is why it is argued that norms applicable in situations of
exceptions should be found through the powers contained at article
38(1)(c) of the Statute of the International Court of Justice.
By applying general principles of law, the ICJ can bring about the
maturation of these norms so they can be incorporated as jus
cogens in this new jus gentium. The advocated approach
therefore aims at multiplying the references from one treaty to
another in order that the norms contained wherein are progressively
incorporated in international judgements and therefore that their
opposability to states be recognised as coming from their status as
jus cogens in international law. One step of this approach
was to draft the rights to be recognised and this was done in a
large part through the Turku Declaration.