Section II

International Standards: What They are and How They are Created 

The central notion of human rights is "the implicit assertion that certain principles are true and valid for all peoples, in all societies, under all conditions of economic, political, ethnic and cultural life.. Further, human rights implies that these principles are somehow present in the very fact of our common humanity..." (1) The notion places on individuals, every organ of society, and especially the State, responsibility for respecting and protecting these principles with regard to each and every human being.

This notion recognizes a fundamental relationship between individual rights and society. As the Universal Declaration of Human rights begins, "...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."

Human rights standards are laid out in declarations and proclamations, conventions, and covenants. Declarations and proclamations are statements identifying and describing human rights. Important statements on both universal and very specific human rights have been made by the United Nations General Assembly, international intergovernmental conferences, and regional bodies. Such instruments are normative but have no legal effect. Conventions and covenants, by contrast, are normative instruments that elaborate standards which are legally binding upon the States that ratify or accede to those instruments.

All of these types of treaties are commonly referred to as human rights "instruments". These instruments are statements of the minimum legal principles upon which States are able to agree. They are the basic standards to which States should comply. States may compliment the incorporation of these fundamental standards in their national laws with additional laws and procedures that will further define and protect human rights in their jurisdiction.

History of human rights standards 

The most fundamental instrument is the Universal Declaration of Human Rights, created shortly after the founding of the United Nations. This Declaration (adopted in 1948) secured human rights as basic components of international law. It contains human rights standards evolved over many decades, growing out of efforts beginning in the 19th century to establish common codes for relations among States. 

The process of establishing international standards on human rights accelerated after the horrors of World War II. The 1950s through the 1980s saw a constant expansion and extension of human rights standards. Treaties were written covering a wide range of specific issues, including the right of self-determination, prevention of discrimination, war crimes and crimes against humanity, slavery and forced labor, treatment of prisoners and prevention of torture, nationality and refugee status, freedom of information, rights of women, children and other specific groups, and social welfare. There are now more than 90 different international treaties in the arena of human rights.

In a parallel field, the development of strong labor movements in many countries helped prompt the formation of the International Labour Organization (ILO) in 1926. That body is responsible for developing a range of international agreements to provide minimum common standards for treatment of workers, workplace conditions, protection of organizing rights, and so on.

Two major covenants covering the broad definitions of political and civil rights, and social, economic and cultural rights were adopted in the mid-1960s (2). Together with the Universal Declaration, they are sometimes referred to as the "International Bill of Human Rights." 

The World Conference on Human Rights held in Vienna in 1993 culminated this period of expansion and extension of human rights protection. The Vienna Declaration and Plan of Action adopted by representatives of virtually all the governments of the world underlined the universality and the indivisibility of human rights. It affirms that the rights laid out in the various instruments apply to everyone, everywhere, and that political and civil rights are inseparable from social, economic and cultural rights.

That conference identified seven major human rights instruments as fundamental treaties, for which ratification and implementation must be universal. These include the two covenants referred to above, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

All of these standards are intended to serve as the basis for creation of relevant national law and jurisprudence in all countries. Ratification or accession to a treaty by a nation-state is an expression of commitment to bring national law into compliance with the legal standards set out in that treaty.

How standards are developed 

Treaties and other standards generally come into being at the initiative of one or, more usually, several concerned States that call for drafting a standard in relevant UN fora. A number of treaties have come out of recommendations first declared in the UN Commission on Human Rights; some are made directly in the General Assembly.

The Commission on Human Rights is the principle subsidiary body of the Economic and Social Council (ECOSOC) , comprised of delegates of a large number of UN member States. Its annual six-week sessions in Geneva serve as a forum for hearing concerns from governments and non-governmental organizations relative to human rights violations around the world, and for preparing recommendations to the UN for responses.

The General Assembly is the main deliberative and policy setting body for the UN; all member States have voice and vote in it. It meets annually in New York for sessions which continue over nearly two months.

Many initiatives by concerned States in these UN fora have been encouraged by non-governmental bodies bringing attention to particular types of abuse of rights for which no existing standard provides adequate protection.

Of course, some States have found the promotion of particular human rights standards a convenient political tool to criticize the behavior and conditions in other States ruled by political or ideological opponents. During the cold war, debates over human rights were major features of international discourse and propaganda. For example, Western capitalist countries strongly promoted political and civil rights and condemned countries ruled by socialist and totalitarian regimes for suppressing or denying those rights. In contrast, countries of the socialist block claimed to uphold economic and social rights, and condemned western countries for lack of interest in these rights and their denial in colonies or client states supported by them. Even this biased attention has served in the past to promote human rights standards by giving wide visibility to the notion and issues of human rights.  

Once promoters get the approval of the UN General Assembly for the creation of a new instrument, an intergovernmental working group or drafting group is appointed. Such groups normally include participation by States from all regions. They are usually led by representatives of governments seeking to promote the new standards.

However, countries that opposed such standards, or supported them with major reservations, often also secure themselves a seat on the drafting committee to ensure that whatever draft is eventually produced is not too radical. Other times, it is simply to try to slow or block the achievement of a text which the drafting group might otherwise adopt by consensus. 

Some treaties have taken many years to come into being. The 1990 Convention on migrants rights took ten years of work and negotiations after the working group was established in 1980.

Drafting groups generally study existing standards to draw on what may be relevant, comparable or applicable. They also often draw on expertise of independent legal and human rights organizations, including non-governmental bodies with competence in the field. For example, the Drafting Committee for the Convention on the Rights of the Child utilized draft concepts and language submitted by numerous child welfare and children's rights organizations.

How treaties become international law: signing, ratifying, acceding

Once the drafting group agrees on a consensus text, it is submitted to the UN General Assembly for adoption, either by vote or consensus. Adoption of an international instrument is only the first, and often easiest, step in achieving its purpose of becoming an instrument of international law (3). In the global public forum of the General Assembly, few States will object to adoption of standards, since adoption by the General Assembly carries no binding commitment for individual States. To object to consensus or vote against would be to stand out as opposing human rights. States seldom view this as a productive diplomatic stance. 

Any treaty must be agreed to formally by a minimum number of States before it is binding even upon those signatory States and becomes authoritative as an international standard. Even then, it is binding for international complaints only on those States which do formally agree to incorporate its standards.

By formally agreeing to a treaty, a State agrees to incorporate and be accountable to its standards. Such agreement can be made in two formal steps or all in one. A State may sign a treaty, which may be considered an expression of intent to adhere to it. This is usually done by the executive branch of government. 

Ratification of a treaty generally requires the action of the legislative or lawmaking branch of government. It is a formal agreement to the text of the treaty and to adopt its standards as national law. If necessary, a government may indicate the steps that will be taken to bring national law into compliance with the treaty.

A State may also proceed directly to accede to a treaty without the preliminary signing, by taking the necessary legislative action to adopt the treaty. By ratifying or acceding, a State becomes a State Party to the treaty.

The national incorporation of standards is the most significant value of international human rights treaties. It establishes minimum acceptable standards for national law and policy. It assists States in developing their own law and jurisprudence by providing a well-developed set of standards, definitions and even specific legal language, with which national laws may be elaborated.

When a treaty comes into force 

A treaty usually requires a minimum number of States to ratify or accede to it before it "enters into forces" and becomes operational. This minimum number is usually set out in the treaty itself. It may vary: 20 States are required as the minimum number for the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; some treaties have specified as many as 40.

When a treaty enters into force, it becomes binding on those States that have ratified or acceded to it. Formal complaints may be brought internationally against a State Party to the treaty, although officially sometimes only by another State Party to the same treaty.

States may ratify a treaty with "reservations," stating that they consider certain specified passages or articles in the instrument non-applicable or non-binding in their case. Some States do so, arguing that certain articles do not apply to their reality. However, in some cases, governments have placed reservations on key operative articles or principles. In so doing, they undermine implementation of its intent while appearing to adopt it. 

Most major treaties establish formal "treaty bodies" or committees for purposes of reviewing implementation, monitoring compliance, and/or hearing complaints regarding the provisions of the treaty. These committees are generally named from among persons nominated by governments of States Parties to the treaty. Most treaty bodies are mandated to report annually to the UN General Assembly through the Secretary General.

A number of treaties stipulate that States Parties are to provide regular reports to the respective Committees on legislative, judicial, administrative or other measures taken to implement the treaty, and how problems arising from issues of the treaty are dealt with. For example, States Parties to the International Convention on the Elimination of All Forms of Racial Discrimination are expected to prepare reports every two years. Some governments allow, even encourage, public or non-governmental contributions towards their reports. The treaty bodies also may receive reports and documentation submitted directly by non-governmental sources.

Some treaties also spell out specific procedures by which formal complaints may be registered against a state party which violates the terms of that instrument. Procedures for reviewing and attempting to resolve complaints and disputes regarding compliance with treaty standards are generally stipulated as well.

Many other values of treaties

Treaties have many other values and uses independent of whether they have "entered into force." This is often particularly so in countries which may refuse to ratify precisely because of problems or abuse.

Domestic jurisprudence in a number of countries has allowed international treaties to be cited in legal complaints and court proceedings even when that country has not ratified or acceded to the particular treaty.

The very existence of a treaty, such as the one against torture, has been a very powerful information and pressure tool in international fora against governments that insist on continuing such practices. International standards have a powerful moral value, which also aids proponents of better standards or opponents of abuse of human rights in domestic public, press and parliamentary debates.

International standards serve as a useful guide and sometimes effective stimulus in the development of specific legislation incorporating some of the standards, even if a government is unwilling or unable to incorporate the entire content, and thus resists ratifying or acceding.

International standards may be valuable organizing tools for groups or communities of affected people. For marginalized, excluded and often disempowered groups such as migrants, the existence of a treaty defining their rights affirms that they exist, they are recognized and they have rights. 

This alone can be very empowering. It assists in upholding and restoring a sense of dignity to affected individuals. It can motivate organizing and collective action by confirming international recognition and support for their situation. Campaigning for local recognition of those rights can also be a specific rallying point around which to build self-help organization, and cooperation with other concerned groups and sectors.

Building cooperation and action around promotion of migrants rights has been a key element in developing a number of organizations of migrant workers in Asian and European countries. It has facilitated the formation of a Migrant's Forum in Asia, bringing together local and national groups of migrant workers across very diverse nationalities and experiences. Campaigning for migrants rights has done so precisely because it offers a common focus of direct self-interest and self-defense for migrants.

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