A Global Law of Human Rights

By Antea Bonito

In March 1987, John Peters Humphrey delivered a speech, A Global Law of Human Rights, at Brigham Young University in Provo, Utah, analyzing the conditions of the revolutionary international human rights regime as it existed at the time. In his speech, Humphrey tried to propose a solution for the major challenge facing the creation of a common global regime concerning human rights – essentially, the fact that states still hold a monopoly over the control of the international system.

How did the location, and the public, influence Humphrey’s choice of topic and his way of delivering his message? It is undeniable that one of his main goals was to raise awareness among the students and professors listening to his lecture – but it could be also argued that Humphrey wanted to inspire them to take on important subjects such as the challenges facing the international system. Humphrey himself says as much at the end of his speech – that his most important message concerns the need to educate the world opinion, which is conducive to the purpose and the milieu of the speech itself. One of the main points in Humphrey’s speech concerns the fact that states are still the main actor on the international scene, and that they are the only ones capable of controlling the world order. He then points out that there is not actually much that can be done to implement a system of global laws of human rights – and that the only choice that we have is to focus on educating the people and hope for a change that comes from within states themselves. His speech pays peculiar attention to the importance of the individual – this focus can be considered as part of a larger discourse about the rising status of individuals as subjects of international law, with obligations but especially rights (Humphrey himself raises this point at the beginning of the speech).  It is particularly clear that Humphrey counts on this dialectic of individuals-states to bring about the needed change on the international scene – a change that would make it possible to have a realistic and constructive conversation about developing a discourse about a global law of human rights.

In his speech Humphrey holds that traditionally international law referred only to states – in particular, it can be said that the current international system is still a product of 1648 and the Treaty of Westphalia, which gave birth to nation states and the concept of sovereignty as we still recognize it today. The international order, as he points out, was ‘purely horizontal’[1]. However, today, there is a new concept of world law, which at the same time applies to a new concept of world order. What was the factor of change that allowed this revolution to come about? Humphrey holds that it was the international law of human rights itself, and in general a new discourse about human rights which started developing after WWII, which was embodied by entities such as the UN, and its charter, as well as the UDHR and the other international covenants on human rights (the ICCPR and the ICESCR). Humphrey focuses in particular on the status of the UDHR – which is not strictly legally binding but which, he holds, is actually ‘binding as part of the customary law of nations’[2] . Humphrey emphasizes that there are also other instruments that can be put in place to keep in line states not signatories to treaties: the implementation procedures at the UN, as well as the human rights committees, or the UN Commission on Human Rights. After reviewing such topics, Humphrey gets to the point we were all waiting for – given this, what we lack are ‘sheriffs with the power to enforce the law’[3] that we all supposedly agree upon. The problem with this international policeman is that it will never come into being as long as individual nation states hold the monopoly of coercive power in the international community.  Humphrey concludes that the only thing that we can do is accept this and work through the existing mechanisms that are available to us – he holds that it is important for governments and states to educate the public opinion through the ‘organization of shame’[4], which is another term for public / peer pressure. He recognizes that it is not much, but at present times it is all we have.

The speech is interesting, but it did not propose anything new or particularly revolutionary. It seems to represent the position of someone accepting the impossibility of changing the status quo – a sort of prise de conscience, if you will. Hence, Humphrey proposes a ‘bottom-up’ approach that is supposed to start from citizens and work its way up to the states who can influence the international community. The speech in itself is both realistic and too optimistic. It is realistic because it recognizes, without much fuss, that there is not much that can be done – but, at the same time, it is maybe too optimistic in its consideration of public opinion and the efficacy of peer pressure, as well as the status of the UDHR in international customary law. As far as the UDHR is concerned, it has gained more and more relevance on the international scene, and is furthermore utilized as a ‘rule of decision or as a significant interpretative guide to the meaning of domestic constitutional or statutory provisions’[5]. The UDHR is recognized globally, and it can be ‘defended’ by states who can take it upon themselves to punish its infringement. It specifically relies, however, on international peer pressure. Now, it is true that the UDHR and the other international covenants are a part of customary international law and hold a certain power over states. However, how are violations actually punished? It is enough to look at the conditions of international relations today to notice that persistent violators of human rights are not always punished. What about the Russian actions towards Ukraine? Or North Korea? Or Erdogan in Turkey? These actions were condemned by the international community, but what effect did this condemnation really have in the end? In all these cases, peer pressure was almost useless. True, states can put in place collective coercive measures (moving from uti singuli to collective instruments, which normally ensures a wider impact). Sanctions can be put in place. There are also legal methods involving the use of force that can be resorted to – in international law this is called reprisal – but which is still subject to numerous limits to respect the bounds of legality. As of today, the UN Security Council is supposed to be the main international sheriff – but finally, even the Security Council is limited by the will of nation states who compose it and by its legal basis – it can impose targeted sanctions or work through blacklists, but those have limits and drawbacks too. Furthermore, there is no world court for human rights, and it is not likely to exist in the future. Individual states would have to give up certain prerogatives and relinquish a significant extent of their sovereignty to create such an entity – which is not likely to happen (especially when we consider that countries such as the US have signed but not ratified major international covenants, such as the ICESCR). Furthermore, if such a court did exist, it would be overwhelmed with cases, just as the ICC and the ECHR in Strasbourg are today. Also, how would access to a world court for human rights work? Today it is still very hard for people to access international remedies for alleged violations of human rights – they can only legally do so after exhausting all national channels, which is costly and time-consuming. It is true that, as Humphrey points out, there are human rights committee who hold a certain power over states because of their reports about human rights violations – and these bodies hold the view that their opinions are binding on states because of peer pressure but finally, it all comes down to individual states and how much they decide to be affected by it.

All in all, then, Humphrey’s speech is realistic and raises several good points, but it is also a tad too optimistic. It is however very well-inserted in the ‘courante’ which recognizes the importance of individuals and the individual’s new status in international law. However, it all passes through states. And, as Humphrey himself writes, as of today this is all we have.

[1] J. P. Humphrey, “A Global Law of Human Rigths”. Brigham Young University (March 1987): 2.

[2] Idem. 4.

[3] Idem. 9.

[4] Idem.

[5] Hurst Hannum, “The Status of the Universal Declaration of Human Rights in National and International Law.” Digital Commons. Tufts University, (1995/1996).

 

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