Human Rights for the New Age - Co Applying IHRL

It is indeed true that any law cannot operate effectively in a vacuum, International Human Rights Law (IHRL) being no exception. Being a body of law which primarily deals with human beings and their rights and duties, the nature of IHRL is inherently dynamic and presupposes a certain amount of adaptability and flexibility. Furthermore, the very nature of rights which human beings enjoy vary according to circumstances, regions and eras. Naturally, there exists a need to adopt a holistic and harmonious approach in the interpretation and application of IHRL. It also needs to be considered that IHRL norms were developed at a time when certain factors (such as the internet, globalisation, climate change) were not a concern, or did not exist. To say that IHRL should apply in a vacuum in the same manner as it was designed for, would be to ignore the realities of the modern day and limit the effective realisation and enjoyment of human rights. In an everchanging and advancing world, with new elements interacting with the body of IHRL, the need for IHRL to be able to account for such elements while operating is more pressing than ever.

The need for co-applicability of IHRL with other bodies of law can be highlighted through the relationship between IHRL and International Humanitarian Law (IHL). IHL restricts itself to the governing of armed conflicts and times of war, whereas IHRL primarily deals with peace time norms. However, this does not imply that IHRL norms should, or indeed do, cease to exist when there is a declaration of war. The only way in which protection of the full spectrum of rights would be achieved would be for IHL and IHRL to apply concurrently, even in times of war. This is due to the fact that both bodies of law complement each other and have the potential to compensate for their shortcomings. For instance, while the norms of IHL make it clear that they are applicable even to Non State Actors, the applicability of IHRL on such entities is relatively underdeveloped and vague. On the other hand, the norms of IHL lack an effective enforcement mechanism and several gaps arise in the observance and possible accountability of violation of such norms. Contrastingly, the IHRL framework includes the elements of State responsibility and elements of oversight and enforcement, which would bridge the gap created in accountability by IHL. The reality of modern conflicts is that the line between a combatant and a non-combatant has been blurred to the point of nonexistence. Coupled with the fact that hostilities are now conducted within the territory of civilian population, there needs to be a redressal system in place for such potential victims of human rights abuses even times of war, which would be provided by IHRL norms. There are certain aspects of IHRL that continue to operate irrespective of conduct of hostilities, such as the right to a fair trial and the protection against torture, and act as safeguards not allowing the State to derogate without limitations. Derogation clauses in international human rights treaties themselves are indicative of the interplay between IHL and IHRL. Most international human rights instruments have limitations on derogations[1], protecting certain core rights which may not be derogated from even in the time of a public emergency. This bar on derogation implies that even when the status quo of society is challenged, and the nation is engaged in conflict or an emergency, certain human rights would continue to apply. Had this not been the case, States would have an absolute carte blanche in violating human rights in times of armed conflict or war. The general approach in this regard should be that IHL and IHRL complement each other or become integrated to specify their scope or content.[2]

The most detrimental effect of not accounting for IHRL within other realms of law is perhaps best illustrated by the global ‘War on Terror’ which nations have been engaged in for more than the past 20 years. After the terrorist attacks on the USA on 09/11/2001, the UN Security council rushed to draft Resolution 1373 within a matter of 17 days, calling for a plethora of severe measures to be implemented both on a national and international scale to ‘fight terrorism’[3]. There are two major shortcomings with this; first being the absence of a definition of terrorism, which allows States to formulate their own definitions as they deem fit, leading to arbitrary arrests of citizens, and second being the absence of any limitation of such measure in the interest of protection of human rights. The consequence, has been the formulation of laws which are supposedly aimed at national security and countering terrorism, but in their operation trample upon human rights and are often used in an arbitrary fashion by States to cripple dissent. The cascading effect of Resolution 1373 is still felt today with security laws across various nations varying in intensity and lacking adequate safeguards for the protection of human rights. Subsequent efforts by the international community to integrate IHRL into the security law framework has seen limited success, with very mild attempts to limit the scope of security laws.[4]

The potential for a successful integration of IHRL with other bodies of law may perhaps be best demonstrated with the evolving climate change legal framework around the world. Although missing in its initial stages, the notion of viewing environmental law through the lens of human rights law has evolved in international climate change law and has possibly even developed the same.

While the framework on climate change omitted the angle of an individual and faced the primary focus on States, emerging international legislation and jurisprudence have sought to establish a link between human rights law and climate change law. The most recent and glaringly obvious of these is the adoption of a resolution by the United Nations General Assembly recognising the right to clean, healthy and sustainable environment as a human right. However, the connection between environment and human rights was long since established, stating that all people shall have the right to a general satisfactory environment favourable to their development.[5] While an important aspect of rights is the establishment of substantive rights, another equally critical aspect is the enforceability of such rights. Looking at the climate change regime in isolation, it is evident that there exist very few enforcement mechanisms which are binding. Obligations under climate change law are largely dependent on the capabilities of individual states and upon voluntary reporting of States. The integration of IHRL in this aspect allows for greater accountability, as it clarifies the notion of responsibility by holding a State accountable for failure to meet climate change obligations. Additionally, IHRL provides a better platform for enforcement of rights as it entails forums for redressal and have the potential to bring actionable claims against the State. In other words, the inclusion of IHRL with climate change law provides for a more robust realisation of human rights and achievement of climate change reduction goals, thereby benefiting both bodies of law. There are certain added dimensions of climate change which can only be brought to light through the provisions of IHRL, such as the aspect of intergenerational equality. The notion that the younger generation is being discriminated against due to the failure of the current generation to mitigate climate change effects has considerably added vigour to the debate on climate change. The reason behind this being the ability of IHRL to interpret climate change through the lens of discrimination, thus allowing for a stronger link with the State and establishing responsibility. The compatibility of IHRL with environmental law is also evidence by the growing number of litigations pending in both domestic and regional human rights Courts around the world.[6]

In a continuously changing world, with new aspects of life cropping up regularly, followed by regulatory bodies of law, it is increasingly important to remember that human rights are not set in stone but need to be able to adapt to the changing realities of the time. With technological advances shooting ahead, new challenges such as mass surveillance, communications interceptions and individual surveillance, all should interact with the norms of human rights law in a manner which affords most protection to the individual.

References and Endnotes

[1] Article 4, ICCPR; Article 15, ECHR

[2] Mapiripán Massacre v. Colombia (2005)

[3] UNSC Res.1373 (2001)

[4] UNGA Res. 59/191(2004); SC Res 1456 (2003)

[5] Article 24, African Charter on Humans and Peoples Rights

[6] IACtHR Advisory Opinion on Climate Change, UNCRC General Comment 26 on Rights of Child on Climate Change, KlimaSeniorinnen v Switzerland (ECtHR), Duarte Agostinho and others v. Portugal and 32 Others (ECtHR)