Contrary to the jus ad bellum which deals with the right of waging war and with the restrictions and conditions applicable to that right, the jus in bello aims at limiting as much as possible the injuries caused by war. The term most frequently used to refer to that branch of international law is “international humanitarian law”, though the term “humanitarian international law” would be more correct. Traditionally, a distinction is made between, on the one hand, the law of The Hague regulating the means of warfare and, on the other hand, the law of Geneva aiming at protecting certain persons and property during war time.

A. THE LAW OF THE HAGUE

The law of The Hague concerns the means of warfare by defining the techniques that may be used and the weapons that are authorised in armed conflicts. The relations between belligerent and neutral States are also governed by the law of The Hague. Several documents are at the origin of the law of The Hague adopted at Conferences in that city in 1899 and 1907.

The so-called “Lieber Instructions” represent the first attempt to codify the laws of war. Those “Instructions for the Government of Armies of the United States in the Field” were prepared during the American Civil War by Professor Francis Lieber and promulgated by US President Abraham Lincoln on 24 April 1863. “Although only binding on the forces of the United States, they correspond”, as stated by Dietrich Schindler and Jiri Toman, “to a great extent to the laws and customs of war existing at that time”.

The Declaration of St Petersburg of 11 December 1868 “renouncing the use, in time of war, of explosive projectiles under 400 grammes weight” prohibited the use of small explosive or incendiary projectiles. The Declaration reflects a compromise aimed at reconciling “the necessities of war with the laws of humanity”. The need for that conciliation is explained in the preamble of the Declaration as follows:

Quite oft en little attention is given to the exact meaning of the concept of “human rights”. Nowadays, considerable efforts are undertaken to expand the list of human rights with one or another novelty. A preliminary question should be raised as to the conditions that should be fulfilled by a given interest to transform it into a human right. What quality requirements should be satisfied to qualify as human right? As its denomination itself indicates, one may assume that human rights are rights everyone is entitled to, purely and only because he or she is a human being.

Inflation, a negative phenomenon in economics, is unfortunately also not unknown in relation to legal concepts. A few examples illustrate how difficult it may be to stick to a pure terminology. Not all ill-treatment is inhuman treatment and certainly not torture. Not every alien staying illegally in a country is an asylum seeker and certainly not every asylum seeker is a refugee. Not every massacre is genocide. And not every right is a human right. Sometimes it is assumed that every legitimate aspiration is a human right. If the concept of human rights has any meaning, it should only apply to “rights”. What is not a right is a fortiori not a human right. According to the classical definition of Rudolf von Jhering, a right is a “legally protected interest”. Consequently, it must be an interest recognised, protected or guaranteed by the national legislation, by the Constitution or by international treaties. This is a formal requirement. But there are also substantive requirements.

A legitimate aspiration, however important or desirable, is not necessarily a right. Here too, some examples may clarify this. Nothing is more looked after than the “pursuit of happiness”. Every human being attaches high importance to loving and being loved. But, however much we may regret it, there is, at least in the legal meaning of the concept of “right”, no “right to happiness” and no “right to be loved”, no more so than a “right to fair weather”. Of course, anybody may claim the contrary but this is without legal consequences whatsoever.

Social rights are generally included in other conventions than civil rights because they have different characteristics and because the role of judicial supervision, if any, is different with respect to social rights than with respect to civil rights. First, we will turn to the role of international supervisory organs with respect to social rights before examining the judgments of a prominent national constitutional court (the South African one) in the field of social rights.

A. SOCIAL RIGHTS IN INTERNATIONAL CONVENTIONS

If we speak about human rights in their classical meaning, it is because modern developments have given a different meaning to those rights. Since the Universal Declaration of Human Rights of 10 December 1948, the catalogue of human rights has been expanded with the inclusion of social rights, such as the right to social security, the right to work, the right to health care, the right to education, etc. This expansion has changed the very concept of human rights. Those social rights are not less legitimate or less important than classical civil rights but their legal characteristics are different.

THE DIFFERENT CHARACTERISTICS OF SOCIAL RIGHTS

The existence of different conventions for civil rights and social rights is not the result of a conscious and deliberate choice of lawyers, diplomats and politicians. It is even less the result of an old-fashioned liberalism blind to social needs. Nor does it result from the ignorance of real life or from a regretful negligence. It is the intrinsic difference between those two categories of rights that made a different treatment necessary and unavoidable. Those categories have nothing to do with notions familiar to civil codes or to social legislation. They have an autonomous meaning in the field of human rights. The distinction is based on the importance of the means necessary to ensure their implementation requiring an active role of the State. It is not because a right has a civil or a social connotation that is has different characteristics. It is the other way round: it is appropriate to qualify a right as civil or a social right in function of the characteristics it is considered to have.

International protection of human rights is first of all a matter of defining international norms and setting up international systems of monitoring respect for those norms. The process of negotiating the adoption of such norms and systems takes place in political fora. Such a process is governed by procedural rules which take a prominent role when political tensions between the negotiators are high. The United Nations Commission on Human Rights, now replaced by the Human Rights Council, even the former Sub-Commission on Human Rights, but foremost the General Assembly, and its Third Committee, and Human Rights World Conferences are such political fora by excellence. By way of an example showing the importance procedural issues may have, a detailed analysis of such discussions at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance is given below.

That World Conference took place at Durban (South Africa) from 31 August to 8 September 2001. The Conference was scheduled to come to an end in the evening of 7 September 2001, but as neither the Working Groups nor the Facilitators to whom some particular “difficult issues” had been entrusted could finish their work in time, the Conference lasted one day longer. In the early morning of Saturday 8 September 2001, the two Working Groups, one on the draft declaration and one on the draft programme of action, resumed their work from 7 am to 10 am. Soon aft er the closure of the Working Groups’ last meeting, the Drafting Committee, chaired by Ambassador Ali Khorram (Islamic Republic of Iran), started with the adoption of its report based on the brief reports transmitted to him by the Chairpersons/Rapporteurs of the two Working Groups. It is important to note that all those organs (the two Working Groups, the Drafting Committee, the Main Committee and the Conference) were plenary organs in which the 171 participating States were represented.

Once the report of the Drafting Committee was adopted, it was presented to the Main Committee. Three so-called difficult issues remained to be solved. Those issues related to (1) the grounds of discrimination, (2) the Middle East, and (3) the Past, which included the questions of slavery and colonialism.

At the opening of the judicial year 2007 of the European Court of Human Rights, Judge Françoise Tulkens (later Vice-President of the Court) made a presentation in which she formulated the following relevant questions:

At the seminar organised on the occasion of the opening of the judicial year 2011 of the Court, Judge Tulkens repeated the same questions and one of the speakers at that seminar, Baroness Hale of Richmond, Justice at the Supreme Court of the United Kingdom, tried to reply.

A. “THERE MUST BE SOME LIMITS”

In another speech, delivered at the Barnard's Inn Reading on 16 June 2011, Baroness Hale of Richmond, referring to Tyrer v. the United Kingdom, 25 April 1978, §31 (“the Convention is a living instrument which […] must be interpreted in the light of present day conditions”), observed:

She believes that some things are better left to Parliament because (a) courts cannot engage in empirical research or conduct opinion polls, (b) courts cannot devise whole new legislative schemes and (c) some things ought to be decided by a democratically elected Parliament rather than by the courts. As far as the interpretation of statutes is concerned, she recognises that:

Understanding international protection of human rights requires knowledge of the institutional framework in which those norms have been adopted and of the mechanisms set in place to favour respect of those norms. A brief survey will be given of the most important instruments, organs and procedures developed both in the framework of the United Nations and in the framework of regional organisations

In the framework of the United Nations, attention is given, first, to the UN Charter-based organs, in particular the UN Commission on Human Rights and its successor the Human Rights Council, including the confidential procedure for the examination of communications and the special procedures (country oriented and thematic) (Chapter V), and, second, to the treaty-based UN organs established by the International Covenants on Human Rights, by the conventions prohibiting discrimination, in particular discrimination based on race and against women, and by other conventions such as those against torture and enforced disappearance and on the rights of the child, of migrant workers and of persons with disabilities (Chapter VI).

At the regional level (Chapter VII) attention is given to the protection of human rights in the framework of the Council of Europe, more particularly by the European Convention on Human Rights (1950) and the European Social Charter (1961), revised in 1996; of the Organisation of American States, by the American Convention on Human Rights (1978); and of the Organisation of the African Union, by the African Charter on Human and Peoples’ Rights (1981).

Until the 20th century, the protection of human rights was, with the exception of slavery, considered to belong to the domestic jurisdiction of each State. Before the end of the Second World War, the only precedents for international protection of human rights were the minimum standard for foreigners, the humanitarian intervention and the protection of minorities in the framework of the League of Nations. The breakthrough was the adoption at San Francisco on 26 June 1945 of the Charter of the Organisation of the United Nations, which contains a number of provisions referring to human rights.

By way of an example showing the importance procedural issues may have in defining international norms and in setting up monitoring bodies, a detailed analysis is given of such a discussion at the final day of the World Conference against Racism of 2001 in Durban (Chapter VIII).

Another issue concerns the internal applicability in domestic law of the provisions of human rights treaties, with particular reference to the European Convention on Human Rights and to the International Covenant on Civil and Political Rights (Chapter IX).

A more substantive issue is the death penalty which has not been prohibited by the main human rights conventions. Progressively, protocols aiming at the abolition of that penalty, additional to the International Covenant on Civil and Political Rights and to the European and the American Conventions on Human Rights, have been adopted. More recently, the European Court of Human Rights of Strasbourg has interpreted Article 3 of the European Convention (prohibiting torture and inhuman punishment) as opposing the imposition of irreducible life sentences both in a domestic context and in the context of extradition requests (Chapter X).

At the European level, the question may be raised whether there are limits to the jurisdiction of the Court of Strasbourg: is the Court competent to continuously impose additional obligations on the States parties to the European Convention which go manifestly beyond the original intentions of its drafters (Chapter XI)?

An analysis will be made of the developments of the case law of the same European Court with respect to positive obligations. Questions will be raised as to the dangers caused by “dynamic” interpretations tending to create new obligations without democratic legltimation (Chapter XII).

An analysis of the developments of the case law of the European Court of Human Rights progressively attributing positive obligations to all rights and freedoms set forth in the European Convention will be followed by drawing attention to some of the dangers raised by such interpretations.

A. THE CREATION OF POSITIVE OBLIGATIONS

In their classic meaning, civil rights and fundamental freedoms entail negative obligations for the State. The State is prohibited from torturing someone, holding someone in slavery or discriminating in the enjoyment of the rights and freedoms set forth in the Convention, arbitrarily depriving someone from his life and freedom, interfering in someone's right to respect for privacy, to freedom of thought, of expression, of assembly and association, etc. Only a few provisions explicitly impose positive obligations on the States parties.

Nevertheless, already in its judgment of 23 July 1968 on the merits of its third case (the Belgian linguistic case), the European Court of Human Rights stated – contrary to the Commission – that, despite the negative formulation of the right to education in Article 2 of the (First) Additional Protocol to the European Convention on Human Rights (“No person shall be denied the right to education”), “it cannot be concluded from this that the State has no positive obligation to ensure the respect for such a right”. This was strongly criticised by Judge Terje Wold (Norway), who considered that inserting a positive obligation into that Article 2 was “not a valid interpretation”. According to Judge Wold, it would be embarking on “a very dangerous road” to admit that the regulation of human rights “may vary in time and place according to the needs and resources of the community”. In his view, “the human rights granted are absolute rights” which must be the same for everyone, since “everyone” is “every person on the earth”. Once a freedom is protected by law against interference by the state, it is a “right”. That does not imply, contrary to what was stated by the Court, that it implies positive obligations.

On the basis of an analysis of the main international human rights instruments, the concept of human rights will be clarified by identifying different categories of human rights (Chapter I).

A more theoretical approach contributes to specify the characteristics of the socio-economic rights which are different from those of civil rights and fundamental freedoms, as also shown in the case law of the South African Constitutional Court (Chapter II).

The principle of equality is most fundamental. That is why all human rights instruments contain at least a non-discrimination clause and oft en also a general prohibition of discrimination (Chapter III).

A related question concerns the concept of affirmative action which has been strongly influenced by the case law of the US Supreme Court (Chapter IV).

The Universal Declaration of Human Rights of 10 December 1948 contains an Article 14.1 on asylum:

However, none of the human rights conventions, neither at the universal nor at the regional level, mention a right to asylum. Even the Geneva Convention Relating to the Status of Refugees of 28 July 1951 does not guarantee a right to asylum.336

A. THE GENEVA CONVENTION RELATING TO THE STATUS OF REFUGEES

In the Geneva Convention Relating to the Status of Refugees of 28 July 1951, which entered into force on 22 April 1954, the concept of “refugee” is defined in its Article 1, A, (2), al. 1, as follows:

A Protocol to that Convention, taken note of by the UN General Assembly on 16 December 1966, removed the geographic and temporal limits of the Convention (events occurring in Europe and before 1 January 1951).

According to its Article 1, F, the provisions of that Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

It is up to the States parties to the Geneva Convention to recognise the status of refugee of persons claiming that status by applying for asylum in one of those States.

The Charter of the Organisation of the United Nations, adopted on 26 June 1945, contains a number of provisions referring to human rights. Most important are Articles 55 and 56, which constitute the basis of the international law obligation to respect human rights and fundamental freedoms. According to those articles, all Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. Presently, 193 States, nearly all the sovereign States, are Members of the United Nations and did, by becoming Members, accept the obligations of the UN Charter. The obligation, enshrined in that Charter, to respect human rights and fundamental freedoms was, however, weakened by the absence of an enumeration and of a definition of those rights and freedoms. That obligation has been clarified by the adoption of various instruments for the protection of human rights.

The first task of the Commission on Human Rights was the elaboration of an Universal Declaration of Human Rights, adopted in Paris by the General Assembly in its resolution 217 A (III) of 10 December 1948. While providing an interpretation of the obligation to respect human rights taken up by the Members of the United Nations, the Universal Declaration, which is a recommendation of the General Assembly, does not have as such binding legal force and does not establish an international supervisory mechanism of that obligation.

That is why the Commission on Human Rights has pursued its endeavours by elaborating draft international human rights conventions, the legally binding character of which would be beyond dispute for all States becoming parties to it. Those draft s were adopted by the Commission on Human Rights on 16 April 1954 and forwarded to the Third Committee of the General Assembly. It took no less than twelve years before the General Assembly adopted on 16 December 1966, in its resolution 2200 A (XXI), the International Covenants on Human Rights and the (First) Optional Protocol to the International Covenant on Civil and Political Rights.

The second part of this book deals with specific human rights issues and regimes. Some issues are rather procedural such as those dominating the closing of the World Conference against Racism and the question of the internal applicability of the provisions of human rights treaties. More substantive issues are the question of the death penalty and irreducible life sentences, the limits to the jurisdiction of the European Court of Human Rights and the interpretations of that Court attributing positive obligations to the rights and freedoms set forth in the European Convention. Somewhat at the periphery of international human rights protection, a special legal regime is set up for refugees, minorities and victims of armed conflicts.

As there is quite a lot of confusion in the terminology dealing with the issue of the internal applicability of human rights treaty provisions, it is necessary at the outset to indicate what meaning is given to the terms used in the present chapter. Indeed, different terms are sometimes used to describe one particular notion and the same term is sometimes used for different notions. To use different terms for different legal situations, corresponding as much as possible to their natural meaning, may contribute to the clarification of the issues at stake.

A. SELF-SUFFICIENT PROVISIONS OF DIRECTLY INCORPORATED TREATIES ARE SELF-EXECUTING

Direct applicability is viewed as a particular form of the internal effects of a treaty. While the international effects of a treaty depend on the validity of that treaty at the international level, its internal effects concern the domestic status of the treaty in national law. The latter depends on the constitutional system of the State party concerned. In general, international law is not even interested in the domestic status of treaty provisions. International law requires that the State parties fulfil their obligations on the international plane without caring about how this is ensured on the domestic level. Only in exceptional cases does a treaty provide for what – and even more exceptionally how – internal effects should be granted to its provisions.

For many treaties whose object is confined to purely inter-State relations, there is not any need for its provisions to have internal effects. In the event that the provisions of a treaty by their very object need implementation at the national level, it will be desirable that its provisions have internal effects but that is not necessarily indispensable to avoid violations of the international obligations. As a rule, international law is not concerned as long as the international obligation is respected, regardless of whether this is done on the basis of the treaty provision itself or not. If the existing national legislation contains provisions ensuring the same legal effect as aimed by the treaty provisions, the international obligation may be respected in national law, even if the treaty has no internal effects. Nevertheless, it is obvious that the safest means to guarantee respect for such treaty provisions is to give them internal effects.

Before mentioning the justifications given for affirmative action and analysing the different forms of it, it is useful to make a survey of the international provisions dealing with affirmative action and of case law concerning that concept. The crucial question is to know whether affirmative action is an exception to the prohibition of discrimination or is limited by that prohibition. As far as terminology is concerned, it is important to ban the expression “positive discrimination”. Once it is admitted that in the international law of human rights the term “discrimination” is reserved for a difference of treatment that cannot be justified, the expression “positive discrimination” is a contradictio in terminis: if the difference is discrimination, it cannot be positive and, if it is justified, it cannot be discrimination. That is why expressions such as “affirmative action” (in US law) or “positive action” should be used. In UN human rights treaties the expression “special measures” is frequently used.

A. INTERNATIONAL PROVISIONS AND CASE LAW CONCERNING AFFIRMATIVE ACTION

A brief survey of international provisions concerning affirmative action, will be followed by one of the jurisprudence concerning that concept, mainly in the United States and in the European Union.

INTERNATIONAL PROVISIONS DEALING WITH AFFIRMATIVE ACTION

Among the most important international provisions dealing with “affirmative action”, the following may be mentioned: