INTRODUCTION

A new body of scholarship is emerging, under the banner of a “Rights-Based Economy” (RBE). An important part of its agenda is to seek to ensure that macroeconomic and fiscal policies support the realization of human rights. For some, it is the opposite of austerity: it consists of increasing the purchasing power of the poor and ensuring that labour receives a larger proportion of the value created in the economy, with the benefits of growth being spread more equally. For others, we need to go beyond Keynesian recipes and invent a post-growth economy. In this chapter, I try to show how human rights offers a way beyond that opposition, which often makes it difficult to forge alliances across different components of the progressive camp.

In a paper exploring the positions of the United Nations’ Committee on Economic, Social and Cultural Rights (CESCR), Petel and Vander Putten (2021) note that the committee remains wedded to economic growth as a means to ensure the progressive realization of these rights. This should not come as a surprise. The idea that the realization of economic and social rights and poverty reduction require economic growth seems intuitive. It fits neatly within mainstream macroeconomic debates between the fiscally conservative, often found to the right of the political spectrum, and those, coming more often from the left, who argue for demand-driven solutions. For the former group, fiscal consolidation is a precondition for sustainable economic growth over the long term. For the latter, austerity kills growth. It is only by raising the incomes of lower-income earners and the middle class that output will be stimulated to increase and investors to invest. Both agree that growth is needed but disagree on the best way to achieve it.

The reign of this orthodoxy can be readily explained. To redistribute wealth and thus alleviate poverty, there must first be wealth created to redistribute. Moreover, growth is generally seen to hold the promise of employment creation, since poverty cannot be tackled by social protection alone but requires the active population to be provided with jobs – allowing, in turn, for their income from work to be taxed and their social contributions to finance insurance schemes.

A number of human rights instruments contain provisions which allow States to adopt measures suspending the enjoyment of these rights to the extent strictly required by situations of emergency - for instance, in the event of an armed conflict, internal or international, or following a natural disaster (see S. R. Chowdhury, Rule of Law in a State of Emergency: The Paris Minimum Standards of Human Rights Norms in a State of Emergency (London: Pinter, 1989); J. Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights during States of Emergency (Philadelphia: University of Pennsylvania Press, 1994); J. Oraá, Human Rights in States of Emergency in International Law (Oxford: Clarendon Press, 1992); R. Higgins, ‘Derogations under Human Rights Treaties’, British Yearbook of International Law, 48 (1976–7), 281; T. Buergenthal, ‘To Respect and Ensure: State Obligations and Permissible Derogations’, in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) pp. 72–91; C. Schreuer, ‘Derogation of Human Rights in Situations of Public Emergency’, Yale Journal of World Public Order, 9 (1982), 113; A.-L. Svensson-McCarthy, The International Law of Human Rights and States of Exception (The Hague: Martinus Nijhoff, 1998)).

This course book offers a trajectory through the regime of international human rights law – its rules, institutions, and processes. It does not confine itself to the international dimension, however. Although human rights have migrated to international law since the Second World War, they live in a permanent nostalgia for where they come from: the liberal constitutions of the late eighteenth and nineteenth centuries, when they emerged as the Enlightenment’s most visible response to the tyranny of monarchs and to the weight of tradition and prejudice. And, as we shall see, the colonization of international law by human rights perfectly illustrates the formation of a ‘self-contained regime’ – one of those regimes that international lawyers are sometimes tempted to ignore, because they know they cannot be domesticated entirely.

Since the general framework of international human rights law has been built, in the 1960s to the 1980s, a new generation of questions has arisen which focuses more on the effectiveness of that framework and, particularly, on its impact at national level. The role of national authorities is vital in this respect. International human rights can only be effective on the ground, where they really matter, if national courts, parliaments, and governments rely on them, and if civil society mobilizes in order to hold authorities accountable on that basis (see, e.g., D. Beyleveld, ‘The Concept of a Human Right and Incorporation of the European Convention on Human Rights’ (1995) Public Law, 577; C. Heyns and F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (The Hague: Kluwer Law International, 2002); O. Schachter, ‘The Obligation to Implement the Covenant in Domestic Law’, in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), p. 311; on the role of national courts in applying international human rights, see B. Conforti and F. Francioni (eds.), Enforcing International Human Rights in Domestic Courts (The Hague: Martinus Nijhoff, 1997)).

This chapter reviews a number of questions raised by the protection of human rights at a regional level. It does not offer a systematic treatment of how the Universal Declaration of Human Rights has been implemented in the regional context; nor does it examine in detail the working methods or case law of regional human rights courts or expert bodies established at regional level. This case law has been presented in Chapters 3–7, which examined the content of States’ obligations to respect, protect and fulfil human rights without discrimination. In those chapters, the contribution of regional courts or non-judicial bodies has been analysed alongside that of bodies established at the international level in order to describe the content of the emerging jus commune in the field of human rights. As to the overall context, it has been briefly recalled in Chapter 1, section 2, which discussed the role of human rights in the Council of Europe, the Organization of American States, and the African Union.

This chapter offers an overview of the role of the expert bodies set up under the core UN human rights treaties (see, generally, G. Alfredsson, et al. (eds.), International Human Rights Monitoring Mechanisms (The Hague: Kluwer Law International, 2001); P. Alston and J. Crawford (eds.), The Future of the UN Human Rights Treaty System (Cambridge: Cambridge University Press, 2000); P. Alston (ed.), The United Nations and Human Rights: A Critical Appraisal, 2nd edn. (Oxford: Clarendon Press, 2004)). Ten such bodies are currently in operation. These are the Committee on the Elimination of Racial Discrimination (CERD), which has been functioning since 1969, the Human Rights Committee (CCPR) (1976), the Committee on Economic, Social and Cultural Rights (CESCR) (1987), the Committee on the Elimination of Discrimination against Women (CEDAW) (1981), the Committee against Torture (CAT) (1987), the Committee on the Rights of the Child (CRC) (1990), the Committee on Migrant Workers (CMW) (2003), the Committee on the Rights of Persons with Disabilities (CRPD) (2008), the Committee on Enforced Disappearances (CED) (2010), and the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) established by the 2002 Optional Protocol to the Convention against Torture (OPCAT). All but one of these expert bodies have their role and composition defined in the respective treaties with which they supervise compliance. The exception is the Committee on Economic, Social and Cultural Rights (CESCR), which was established by Resolution 1985/17 of the Economic and Social Council (Ecosoc) and which was modelled on the Human Rights Committee created by the International Covenant on Civil and Political Rights (ICCPR).

Human rights have a logic of their own. This stems from the fact that they have originated in domestic constitutional documents before becoming part of the corpus of international law, and that they regulate the relationships between the State and individuals under their jurisdiction, rather than simply relationships between States. In order to present this logic, this chapter provides an overview of how human rights came to emerge in international law; it discusses the sources of international human rights law; and it locates human rights within general international law. Sections 1 and 2 offer a general overview of the main developments that have occurred at universal and regional levels, leading to the contemporary regime of international human rights. The description remains superficial at this stage, but forms an indispensable background to the following chapters. The most controversial questions arising about the sources of international human rights – such as the role of the emergence of a jus commune in human rights law, the status of human rights in customary international law, or the position of human rights in general international law – are explored in further depth in sections 3 and 4 of this chapter. The reader already familiar with the basic instruments of international human rights should move directly to those sections.

This chapter examines the relevance of the notions of ‘national territory’ and of ‘jurisdiction’ to the determination of situations in which the international responsibility of States may be engaged. This has become one of the most debated issues in international human rights doctrine (see, among many others, F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Antwerp and Oxford: Intersentia–Hart, 2004); M. J. Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, American Journal of International Law, 99 (2005), 119; O. De Schutter, ‘Globalization and Jurisdiction: Lessons from the European Convention on Human Rights’, Baltic Yearbook of International Law, 6 (2006), pp. 183–245; M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia, 2009); F. Hampson, ‘The Scope of the Extra-territorial Applicability of Human Rights Law’, in G. Gilbert, F. Hampson, and C. Sandoval (eds.), The Delivery of Human Rights: Essays in Honour of Professor Sir Nigel Rodley (London: Routledge, 2010), pp. 156–82); M. Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford: Oxford University Press, 2011). The main question addressed in much of the literature is whether the notion of ‘jurisdiction’ (taken separately or in combination with that of ‘territory’) designates a condition for a finding of State responsibility which is distinct from that of attribution, or whether instead the two notions – ‘jurisdiction’ and ‘attribution’ – are in fact synonymous and thus interchangeable. And this is indeed the question this chapter focuses upon, although breaking it down into a set of sub-questions corresponding to the different situations in which the question of State responsibility can be raised.

Part II seeks to introduce the substantive content of international human rights. It includes five chapters. Chapters 3, 4, and 5 discuss the three levels of obligations imposed on States: to respect, to protect, and to fulfil human rights. Chapter 6 describes under which conditions rights may be derogated from in times of emergency. Chapter 7 examines the non-discrimination requirement, which cuts across the different obligations imposed on States, and is a core principle of human rights law, with a number of different ramifications.

The obligation to fulfil requires the State to adopt appropriate legislative, administrative, and other measures towards the full realization of human rights. The implication is that the realization of human rights must become the object of a policy aimed at improving them. Not only must policies in place not violate human rights, and take them into account as a transversal concern (a requirement referred to as ‘mainstreaming’); in addition, policies must be put in place explicitly in order to make progress towards fulfilling them. Human rights require, in that sense, appropriate policy-making.