Introduction

In the 19th century international law did not concern itself with protecting the gamut of political, civil, economic, social and group interests and rights considered important in the 20th and early 21st centuries. States were required to protect individuals in a limited number of areas such as piracy, slavery, treatment of sick and wounded soldiers, and prisoners of war. The dominance of the concept of sovereignty precluded any State or institution from using international law to intervene in the domestic affairs and jurisdiction of a State. In 1905, when Lassa Oppenheim published his first edition of International Law, considered to be one of the most significant English-language treatises on the subject, he stated that the rights of human beings were not a part of international law.

The end of World War I started an important shift towards the idea that groups of individuals had to be protected, although the language of human rights was not used widely. The League of Nations in 1919 focused on groups and minorities in particular. Article 22 of the 1919 Covenant of the League of Nations established rudimentary provisions for the self-determination of people who, because of war, had stopped being governed by their own State. It included an obligation on the part of the Mandatory Powers acting on behalf of the League to guarantee the freedom of conscience and religion. The Treaty of Versailles, signed at the end of World War I, established the foundations of the International Labour Organization (ILO) to support the rights of individuals to associate and promote better standards of working conditions.

As can be seen from earlier chapters, the position of the individual in international law was long a matter of major concern to Hersch. From the earliest days of his research in Vienna, he rejected the view that States alone are subjects of international law. In due course, his thinking developed into a direct and deep involvement in what became the most important facet of the decline of absolute State sovereignty, namely, the international protection of the rights of man. In the present chapter, this aspect of his work will be set out as a whole; to approach it simply in chronological terms interspersed with other matters would lead to an unacceptably fragmented presentation.

In April 1942, Hersch received from the American Jewish Committee (AJC), one of the foremost American Jewish organisations, an invitation to write a book on the international law of human rights. The arrangement was concluded in May 1942 when the Committee agreed to pay him a fee of $2,500, plus $800 for secretarial and other expenses. The Committee foresaw that it would take Hersch about a year to complete the study but urged him to do so as soon as possible because the same subject was currently being examined by the American Law Institute and the American Bar Association. From the beginning, it was made clear that the study should not be limited to the substantive content of a Bill of Rights but should extend to discussion of the means of enforcing such rights.

America’s new global power after 1945 was central to the rise of universal human rights as a set of practices and ideals. The new moral language thrived when it received official US backing and usually withered when it did not. Domestic and transnational movements also laid claim to these ideals to press for changes in how states treat their own citizens. Over time their efforts enshrined a view of individual rights as the business of the international community and the domain of international law rather than a matter of strictly internal sovereignty. As the language became global, the rest of the world harnessed and contested human rights ideals in ways that changed Americans’ own aspirations at home and abroad.

Chapter 9 argues that a new layer of complication was added with the so-called human rights–based approach to refugee law. The challenge is that refugee protection is lesser in scope than human rights protection. That ‘lesser’ protection is usually located in the persecution element: while reference to human rights has opened up refugee law to a wider range of harms, not every human rights violation reaches the threshold of persecution. The chapter shows that one consequence of the human rights–based approach is the risk of conceptually merging Convention ground and persecution. According to the human rights approach, a violation of the freedom of religion or the freedom of thought can amount to persecution. In other words, prohibitions on the expression of the Convention grounds in themselves can be considered persecutory. The chapter reveals that this has led to the invention of an alternative or additional kind of harm that stands next to the harm that is inflicted in case the claimant does express the Convention ground – or is discovered in another way. This approach builds on and reinforces ‘discretion’ reasoning, because it distinguishes on the basis of the claimant’s future behaviour and requires ‘discretion’ under certain circumstances.

Human rights abuses are as old as history, but this is perhaps the first era that has demonstrated widespread global concern about them. Modern communication systems such as television, radio, and the Internet thrust human tragedies before us on a daily basis and convince people not only that something should be done about them but also that something can be done about them. There is no denying that human rights abuses abound, and there are many examples in which they have gone unpunished, but at the same time, there is increased global awareness of the issues, and even some progress has been made.

Global issues concerning human rights entail core values and call individuals and governments to examine their perspectives on the value of life. When antiapartheid and black leader Nelson Mandela was released from prison after twenty-seven years and became president of South Africa in 1994, we all extolled the virtues of human will and dignity in world politics. In that case, international economic sanctions and a strong determination to be free of white rule won out over Afrikaner prejudice and authoritarian rule. When Aung San Suu Kyi was allowed to leave house arrest after seven years, and contest the 2012 election in 2012, we all hoped for the best for her and Myanmar. Her struggle for freedom was highlighted by her claim that, “I’m not free until the people are free.” Bigger-than-life actors on the world stage, like Nelson Mandela and Aung San Suu Kyi, draw attention to human rights and the importance of ethics in politics, and they illustrate how contrasting viewpoints about the proper role of states in the lives of their peoples are important factors in global politics.

International human rights law is mainly treaty law (a characteristic of modern international law) with some human rights principles having passed into customary international law and some having acquired the status of general principles of law. Prior to the development of international human rights treaties, a relatively small number of states provided protection of human rights through their constitutions or specific domestic laws, but even fewer provided an effective legal system of remedies. There has been a parallel growth in domestic provision and international instruments for the promotion and protection of human rights, with important cross-over between the domestic and international. The focus of this chapter is on the international law of human rights. Nonetheless, some consideration is given to domestic law as a source of law in this area and also, crucially, as a source of remedy. Indeed, a principle common to all human rights treaties is that they may only be invoked by individuals when domestic instruments have failed to provide a remedy for breaches of human rights.

In the first section we consider the content of international human rights law as rules, liberal or community values and discourse. The next section explores the reasons for state compliance with human rights law. Here we might note the curious irony of this area of international law, namely, that individual states have nothing to gain by it. Unlike use of force and trade, where legal regulation promises mutual benefit for states – peace and prosperity – human rights law restricts the sovereign right of states to do as they please in their own domain. Moreover, with few exceptions, states of all creeds, from liberal democracies to dictatorships, have signed up for human rights law. Raising the question why? Also noteworthy is the growing breadth and depth of international human rights law. The final section examines the formal, policy and social processes of change in this area of international law.

Brownlie and Goodwin-Gill, Basic Documents on Human Rights, 4th edn, Oxford, 2002 (‘BGG’)

Van Dijk, van Hoof, van Rijn and Zwaak (eds.), The Theory and Practice of the European Convention on Human Rights, 4th edn, Antwerp and Oxford 2006 (‘van Dijk’)

Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, 2nd edn, Oxford, 2009 (‘Harris’)

Jacobs and White, The European Convention on Human Rights, 4th edn, Oxford, 2006

Reid, A Practitioner's Guide to the European Convention on Human Rights, 2nd edn, London, 2006 (‘Reid’)

Clayton and Tomlinson, The Law of Human Rights, 2nd edn, Oxford, 2009 (‘Clayton’)

Council of Europe, Human Rights in International Law: Collected Texts, 3rd edn, 2007

UN High Commissioner for Human Rights, www.ohchr.org

Introduction

The terms ‘humanitarian law’ or ‘international humanitarian law’ (IHL), if correctly used, refer only to that area of international law concerned with the protection of members of armed forces and civilians during an armed conflict or military occupation of territory (see Chapter 12). However, human rights do not cease completely to apply once IHL applies. They continue except in so far as the special rules (lex specialis) of IHL apply or human rights treaties have been validly derogated from.

International human rights law is mainly treaty law (a characteristic of modern international law) with some human rights principles having passed into customary international law and some having acquired the status of general principles of law. Prior to the development of international human rights treaties, a relatively small number of states provided protection of human rights through their constitutions or specific domestic laws, but even fewer provided an effective legal system of remedies. There has been a parallel growth in domestic provision and international instruments for the promotion and protection of human rights, with important cross-over between the domestic and international. The focus of this chapter is on the international law of human rights. Nonetheless, some consideration is given to domestic law as a source of law in this area and also, crucially, as a source of remedy. Indeed, a principle common to all human rights treaties is that they may only be invoked by individuals when domestic instruments have failed to provide remedy for breaches of human rights.

In the first section we consider the content of international human rights law as rules, liberal or community values, and discourse. The next section explores the reasons for state compliance with human rights law. Here we might note the curious irony of this area of international law, namely, that individual states have nothing to gain by it.

Introduction

In the 19th century international law did not concern itself with protecting the gamut of political, civil, economic, social and group interests and rights considered important in the 20th and early 21st centuries. States were required to protect individuals in a limited number of areas such as piracy, slavery, treatment of sick and wounded soldiers, and prisoners of war. The dominance of the concept of sovereignty precluded any State or institution from using international law to intervene in the domestic affairs and jurisdiction of a State. In 1905, when Lassa Oppenheim published his first edition of International Law, considered to be one of the most significant English-language treatises on the subject, he stated that the rights of human beings were not a part of international law.

The end of World War I started an important shift towards the idea that groups of individuals had to be protected, although the language of human rights was not used widely. The League of Nations in 1919 focused on groups and minorities in particular. Article 22 of the 1919 Covenant of the League of Nations established rudimentary provisions for the self-determination of people who, because of war, had stopped being governed by their own State. It included an obligation on the part of the Mandatory Powers acting on behalf of the League to guarantee the freedom of conscience and religion. The Treaty of Versailles, signed at the end of World War I, established the foundations of the International Labour Organization (ILO) to support the rights of individuals to associate and promote better standards of working conditions.

Contemporary human rights discourse, however, is predominantly founded upon developments that began with the end of World War II. A declaration on 1 January 1942, referred to as the Declaration by United Nations, committed 26 States, including Australia, to preserving ‘human rights and justice in their own lands as well as in other lands’. This Declaration was later followed by the Charter of the United Nations (UN Charter), which in art 1(3) identified the promotion and encouragement of respect for human rights as one of the central purposes for establishing the United Nations (UN). An important postwar development in the human rights discourse was the adoption by the UN General Assembly in 1948 of the Universal Declaration of Human Rights (UDHR).

The terms ‘humanitarian law’ or ‘international humanitarian law’ (IHL), if correctly used, refer only to that area of international law concerned with the protection of members of armed forces and civilians during an armed conflict or military occupation of territory (see Chapter 12 below). However, human rights do not cease completely to apply once IHL applies. They continue except in so far as the special rules (lex specialis) of IHL apply or human rights treaties have been validly derogated from. Human rights jurisprudence may be relevant also to the interpretation of IHL, such as the meaning of torture, for which there are even more instances in peacetime.

This chapter examines the Nordic reality with respect to human rights. While achieving a positive record in this area, the Nordics have also been criticized for violating the religious freedom of immigrants (especially Muslim immigrants) and having a somewhat outdated version of women’s rights, as well. Nordic (especially Swedish) foreign policy has been criticized for hypocrisy in this area. The situation of Jews and Israel provides a fascinating overlap of these domestic and foreign concerns, which may tend to undermine the model’s appeal overseas.

The chapter deals with the ICJ and human rights. It argues that, while the Court is not and will never be a specialised human rights court, it has a significant role in the protection and development of human rights. The author explains some structural obstacles and impediments to the engagement of the Court with human rights, and then offers some instances of substantial incorporation of human rights into the fabric of general international law through interpretation and legal concepts encompassing international community interests. The chapter suggests that structural disengagement in the sense of norms allowing only States to litigate before the Court does not impede substantial incorporation which may depend on other factors, including the changing attitudes of the ICJ judges and lawyers before the Court.

If the Vietnamese invasion of Cambodia helped to shatter an already ailing anti-imperialist internationalism, a concomitant refugee crisis offered the rival vision of human rights internationalism a remarkable opportunity to fill the void. What remained of the anti-imperialist left contributed little to resolving the issue, yet the human rights internationalists stepped into the breach. Former French radicals turned humanitarians worked with Vietnamese refugees, Eastern European dissidents, and human rights groups such as Doctors Without Borders to organize a campaign against human rights violations in Vietnam. They chartered a hospital ship to rescue the refugees, which amounted to interfering in the internal affairs of a sovereign nation-state, showcasing a new kind of humanitarian interventionism. At the same time, they internationalized the campaign, even winning the support of the US government, which was only too happy to use the crisis to rewrite the history of the war, rebrand itself as a virtuous nation, and shine a harsh spotlight on the Socialist Republic of Vietnam. Despite efforts to deflect charges of rights violations, the SRV could do little to explain itself in the face of undeniable evidence of repression. If anti-imperialism helped secure their international victory in the 1960s, human rights sealed their defeat a decade later. The remaining radicals in the North Atlantic fought back but had little to offer as an alternative. With the core notions of the Leninist problematic in question, the radical left’s vision of internationalism lost its appeal, particularly among a new generation of activists looking for a way to do good in the world. And with anti-imperialism’s influence over the wider progressive milieu slipping, human rights internationalism made a giant leap in consolidating its hegemony, so much so that even some committed anti-imperialists ended up accepting its terms as the least bad option.

Chapter 4 considers the human rights relevant to research using linked data without consent; how these rights come into tension with each other and other relevant interests; and how these tensions should be considered and resolved. It notes the emphasis placed in the West on civil and political rights, such as the right to privacy, and the lack of attention to economic, social, and cultural rights, such as the right to health, and how this has resulted in an unbalanced approach to the regulation of research.

The original critique of human rights is well known. Throughout the 1980s and 1990s, scholars drew attention to various blind spots in the human rights project. Feminists demonstrated its failure in representing and protecting women, just as parallel limitations were targeted by queer and disabled activists, finding powerful institutional battlegrounds in the European Court of Human Rights and the United Nations. TWAIL and post-colonial scholars critiqued the colonial imagery of ‘victims, savages and saviors’ that underpinned the movement, and many critiques intersected multiple communities.

General principles

Libraries have an important role to play in raising awareness of and upholding human rights. Indeed, information intersects human rights and social justice in a number of significant ways, and libraries have had to address issues such as:

• • Should internet access be seen as a human right?

• • Is information literacy a human right?

• • Considerations relating to the information rich versus the information poor.

• • Freedom of expression and the challenge of censorship.

Jaeger et al. (2015, 1) say that ‘As information and related technologies have become increasingly essential to education, employment, social interaction, and civic participation, greater focus has been placed on the idea that information can be seen as a necessary human right and a core part of social justice’.

Sustainable development goal 16.10 (https://sustainabledevelopment.un. org/sdg16) of the United Nations is to: ‘Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements’. Indicator 16.10.2 is the ‘Number of countries that adopt and implement constitutional, statutory and/or policy guarantees for public access to information’.

Meanwhile, Goal 9c of the UN global 2030 Agenda for sustainable development is to ‘Significantly increase access to information and communications technology and strive to provide universal and affordable access to the internet in least developed countries by 2020’. (https:// sustainabledevelopment.un.org/post2015/transformingourworld).

The raison d’etre of libraries is to provide access to information. Jaeger et al. (2015) believe that there are three distinct aspects to information access:

• 1 Physical. Of the three aspects, physical access is the one that has attracted the most attention: access to the document or other form of embodying information.

• 2 Intellectual. Going beyond whether someone has physical access to information, it is necessary to have intellectual access which means having the ability to understand how to get to the information and having the ability to understand the information itself.

• 3 Social. Simply because one can physically and intellectually access the required information, it does not necessarily follow that they do access that information or that all users interpret the information in the same way. Information behaviour is influenced by social trust, social motivation and social inclusion.