Louis-Philippe F. Rouillard[1]:

The Enlargement of Human Rights in “Situations of Exceptions”

As armed conflicts acquired extraordinarily complex features, whereby both international and non-international armed conflicts are fought while civilian authorities are trying to rebuild themselves along the lines of the respect of international norms of human rights, there appears a wide legal void between the application of international human rights law and international human rights norms.

 This is because the charters of human rights or constitutional guarantees of national institutions are intended to apply at all times, but can be suspended in times of martial law, in areas such as freedom of association, etc. This “suspension” takes place in certain countries over the course of decades to maintain the government in power. Since the LOAC do not apply in cases of internal tensions, a juridical lacuna or gap results where neither international conventions nor the LOAC apply.

 To remedy this situation, many have proposed systems to bridge this gap. But efforts have greatly been supported by Professor and Judge Theodor Meron who presented a project for the adoption of international instruments that would guarantee the respect of fundamental rights (e.g., the right to life). His argument is based on the fact that the LOAC, like human rights, have in large part a common root both in terms of rationae personae and rationae materiae obligations and that they are based on the same notion: that of humanity. 

He proposes a convention that would state those fundamental rights that cannot be taken away under any circumstances, whether in peace or in armed conflicts. In fact, he proposes a third Protocol to GC 1949 that would list the rights of article. 3 common to the Geneva Conventions of 1949 and the guarantees of article. 75 of their 1977 First Additional Protocol and article 4 of their 1977 Second Additional Protocol, as well as the common rights listed in regional and universal legal instruments.  

This reasoning may disturb some who believe that state control and national sovereignty have already been threatened enough without creating even more obligations for all involved. But, peace and war are not separated by a thin line on the ground. There are different phases to the state of war ranging from economic wars to unlimited total war, passing through cold wars and small wars. Each hold a place on the scale of conflicts up to absolute peace. The rest of the spectrum includes a relative peace, in which the world is always in a state of tension, thereby justifying the preparation of international instruments for a state of armed conflict that is not what is called a “hot war” -- the use of armed force under all its forms. 

Whatever our take, the trend is toward the enlargement of human rights in peacetime and the protection of victims in times of armed conflicts. Events such as the Chechen crisis of 1991 and of 1995 have already pressed the issue, but this has given the legal debate a life of its own. More recently still, the intervention in Afghanistan (2002) and Iraq (2003), and Lebanon (2006) if justified in part by a much arguable theory of pre-emptive self-defence, have been also justified on the basis of the protection of human rights at large.

Therefore, this article will explore the common understanding of the current norms of the international protection of human, their regional protections from a comparative point of view, the norms of human rights applicable in armed conflicts, the protection of human rights at all times, the Turku Declaration and the Declaration of a Minimum Humanitarian Standard. This will lead us to conclude on the state of applicable rights under contemporary norms of international, international humanitarian and international human rights law and to evaluate the project of creating a final, comprehensive and politically viable international instrument of a universal type protecting human rights through the legal void of these branches of international law. 

The International Protection of Human Rights 

Human rights do not cease to exist during a period of armed conflict or, even less, during periods of internal disturbance, tension or trouble such as terrorism. International conventions exist that define the minimal rights that protect human beings. The problem is that while these norms protecting human rights continue to exist, some can be suspended for the duration of an emergency.  

But these instruments all possess derogatory clauses that permit to suspend some rights. Note that a suspension does not mean that it ceases to exist: on the contrary it means that it continues to exist but it application is suspended in part or in whole and therefore limited. Therefore, international law has international conventions (i.e. International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights[2], applicable to its members whatever their region may be, and regional conventions, applicable to only a number of states regrouped under geographical features (i.e. American Declaration of the Rights and Duties of Man [3], American Convention on Human Rigths[4], European Convention for the Protection of Human Rights and Fundamental Freedoms[5], African Charter on Human and Peoples' Rights [6] ). 

The instruments that do not have derogatory clauses have limitative clauses that rest on the principle of legality. Such clauses can be found at article4 of the International Covenant on Civil and Political Rights[7], article 27 of the American Convention on Human Rights[8] and 15 European Convention on Fundamental Human Rights and Freedoms[9]. To these measures, one could add the proposed derogatory clauses of article 4(b) of the Charter of the Arab States League[10] and article 35(1) of the Convention of the Commonwealth of Independent States (CIS)[11]. 

But even instrument not possessing derogatory clauses possess limits based on the principle of legality, such as in the case of the International Covenant on Economic, Social and Cultural Rights[12] or the African Charter on Human and People’s Rights at its articles 9(2) and 10[13], or with general limitation clauses such as article 30 of the Universal Declaration on Human Rights. The latter states : “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”[14]. In the former case of legality clauses, the African Charter states: “within the law” and “provided that he abides by the law”[15].  

The problem in such case is to define what an emergency consists of or what the limits imposed by the law can be. Article 27 (Suspension of Guarantees) of the American Convention provides such a definition, stating an emergency as one of: “time of war, public danger, or other emergency that threatens the independence or security of the States party” and follows by clearly saying that the guarantees of the American Convention can only be suspended “for the period of time strictly required by the exigencies of the situation”[16].  

By opposition to this approach, Article 15 of the European Convention permits to take the derogatory measures necessary in “In time of war or other public emergency threatening the life of the nation”[17]. The problem with such a liberal definition is obviously that it leaves a large margin of appreciation to the States as to know whether there exists a public danger menacing the life of the Nation.  

The most interesting example concerning the regime of the Council of Europe’s European Convention is that of the Case of Ireland v. United Kingdom[18]. In this affair, the reach of Article 15 was examined by the European Court of Human Rights in a State to State request of the government of Ireland, alleging that the 1922 law of the United Kingdom concerning the emergency powers on the civilian authorities and the systematic practices of the United Kingdoms’ officials on Northern Ireland’s soil contravened Articles 2 (Right to Life), 3 (Protection against torture and cruel and inhumane treatments), 5 (Deprivation of Liberty) and 14 (Non-discrimination) of the European Convention.  

It must be noted that at the time of this affair, only Protocols 1 and 2 to the European Convention were in force[19]. Referring to Article 15, the Irish Government argued that Her Most Britannic Majesty’s measures largely over-stepped the reach of the strict exigencies of the situation, since these measures were not in accordance with international law, as stipulated by article 15[20]. In the second part of its request, the Irish Government furthermore argued that the Law of 1972 on Northern Ireland, attributing large powers to the Northern Ireland Parliament concerning the use of British Forces, contravened article 7 (Nullum Crimen Sine Lege). The European Court of Human Rights based itself on the previous claims of the  first Case of Cyprus[21], the Case of Greece[22] and on the Case of Lawless[23], and judged that the state concerned was best placed to decide the necessary reaches of a derogation, even though that derogation was not unlimited and subject to judicial revision by stating: 

“ It falls in the first place to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency.  By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it.  In this matter Article 15 para. 1 (article 15-1) leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect.  The Court, which, with the Commission, is responsible for ensuring the observance of the States' engagements (Article 19), is empowered to rule on whether the States have gone beyond the "extent strictly required by the exigencies" of the crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para. 22, and pp. 57-59, paras. 36-38).  The domestic margin of appreciation is thus accompanied by a European supervision. ”[24]. 

As a result, the court refuses to allow the argument of the Irish Government and recognised that the actions of British officials did not over-step the strict necessity of the situation[25]. It follows from this decision that the States is tributary of adjudging the reach of the derogation it intends to take. This margin of appreciation left to the State makes it both judge and party, although subject to judicial revision, and therefore creates quite a dangerous precedent. As remarked the renowned Canadian jurist L.C. Green, the Court in effect : “ … held that the burden of proof was on the complainant, and that the standard to be applied was ‘beyond reasonable doubt’ (…) the chances of a Party being found guilty of wrongly declaring an emergency are somewhat remote… ”[26]. 

Not only did the Court agreed in full bench to this benchmark ruling on this score, but not even an obiter dictum suggested that the Court could have been convinced otherwise if, in the use of its discretionary powers, the United Kingdom had exceeded and/or continued to exceed the restrictions imposed by Article15[27]. The Court seems to have kept firmly in line with its decision of the Case of the SS Wimbledon[28], where it opined that it cannot, nor even should contemplate such situations where it would have to interpose its judgement in lieu of the States. 

It is interesting to note that this is totally opposed to the approach of the Inter-American system, where the Court did not hesitate to substitute itself to States in order to determine the limits of the suspension of guarantees in the American Convention and to objectively define what constitute a war, a public danger or a situation of crisis menacing the independence or security of the State. In its advisory opinion of the Habeas Corpus in Emergency Situations[29], the Inter-American Court presented the reasons that could be invoked to claim the suspensions of Article 27. 

In its opinion, the Court takes the direct approach and clearly announces that rights cannot be denied or suspended unless the circumstances leave only this sole recourse to preserve the most fundamental values of a democratic society[30]. The Court therefore puts the legitimacy of the democratic system of government as the ruling principle when it comes to the evaluation of the legitimacy of the use of derogatory measures. It further adds in the same paragraph that the suspension of guarantees may not be dissociated from the “effective exercise of representative democracy”, and that any use of derogation in the aim of undermining a democratic system is an illegitimate use of Article 27. Non content with this, the Court finally opined that the exercise of democratic rights can only be suspended if the strictest conditions of Article 27 are met. By this, the Court states without the inkling of a doubt that it meant :  “rather than adopting a philosophy that favors the suspension of rights, [it] establishes the contrary principle, (…) rights are to be guaranteed and enforced unless very special circumstances justify the suspensions of some, and that some rights may never be suspended, however serious the emergency.”[31]. 

Contrary to the European approach, which seems to permit the wider latitude possible to the State with the reservation of judicial review, albeit only subsequently to a previous action of the State, the Inter-American Court emitted its opinion before any situation concerning such cases reached it and choose to apply a stricto sensu interpretation of the suspension clause of Article 27 of its American Convention. It is also capital to note that the Court did not authorise the proscription, full interdiction of exercise or the eradication of a right ; at the most, the Court allows the State meeting the strict condition of Article 27 to suspended the exercise or to limit the full and complete exercise of the right in question.  The rights in themselves survive this regime of suspension and are deemed inherent to the human being[32], and therefore inalienable[33]. 

These approaches of the Inter-American and European system are distanced in part by the approach of the African Charter. Still, one must emphasise that it is so in part only because while the African Charter adopted a new approach by including the rights of collectivises into its framework, it was neither the first nor the only one to include individual, economic, social and cultural rights with obligations in a regional system of protection of human rights.  

The American Declaration on the Rights and Duties of Man incorporate respectively these at its Articles XIII, XXIX, XXX, XXXI et XXXIV : the right to benefit from cultural life in one’s community (XIII); the right to social security (XVI), the obligation of having an individual deportment permitting the development of the potential of others (XXIX); the obligation to support parents (in particular the aide of children and the honouring due to parents) (XXX); the obligation to receive at the minimum a primary education (XXXI) and the obligation to serve the community and the Nation (XXXIV)[34].  

The Draft Charter of Fundamental Rights of the European Union [35] also incorporated some of these notions. As does, in a more restrictive measure, the rights and obligations to participate in the cultural and intellectual life of the Charter of the Arab States League at its Article 35: “Citizens have a right to live in an intellectual and cultural environment in which Arab nationalism is a source of pride, in which human rights are sanctified and in which racial, religious and other forms of discrimination are rejected and international cooperation and the cause of world peace are supported.”[36]. Nonetheless, it is exact to claim that the African Charter seems to accord a prominence to these rights and that its dialectic of individual rights as opposed to collective rights in much more pronounced than in other systems. 

Still, the writing of Articles 9(2) and 10 forces one to ask himself if the protections of the African Charter are not illusionary[37].  The question is not solely or the abstract : in determining the true force of the legal limitation clauses, one can discover if the African Charter is a juridical instrument  or a political instrument serving the ends of non-democratic regimes. The problem of the African Charter was, at first, that its African Commission on Human and People’s Rights had not, for the longest time after its implementation, had the occasion of pronouncing itself on the important question. Rather, indication of its potential was given through Articles 60 and 61 as to its capacities to acquire a viable juridical strength opposable to States. Article 60 reads as  directing principles :  “ The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members. ”[38] 

And Article 61 attempts to enlarge this reach by stating: “ The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognized by member states of the Organization of African Unity, African practices consistent with international norms on human and people's rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine. ”[39]. 

It is important to note here that while the African Court was created following the redaction and adoption of its founding Protocol, its article 7 retakes expressis verbis the notions of the African Charter stating that in its deliberation: “the Court shall be guided by the provisions of the Charter and the applicable principles stipulated in Articles 60 and 61 of the Charter.” [40]. There is therefore a need to set and determine the legality principle from other instruments. An extraordinary analysis of this kind was made by A.L. Svensson-McCarthy and permits to define in a large measure this principle of “legality”[41]. First, the question is to know what sources of law are included in this principle.  

At the universal level, the principles invoked flow from Articles 29 and 30 of the Universal Declaration. The question of legality does not pose serious problems when concerning the elaboration of the both International Covenants of 1966[42]. When it came to refer to Articles 29 and 30, the debate concerning the legitimacy principle and its link with legality addressed mainly the notion that rights could only be limited by law.  

Many countries of the British Commonwealth founded this sentence much too limitative in the residual power that it left to the States. The principal argument was that there existed more than the sole means provided by law to impose justified limits on the exercise of human rights in the Universal Declaration and that often the law itself was the very source of contravention to human rights. These countries preferred a mention to the concept of justice, which had in their eyes a superior level to that of the law. After many discussions, Article 29 incorporated nonetheless the notion of law in its paragraph 2, but the criteria of satisfaction of the just exigencies of moral, public order and general good were adjunct to it in order to complete it. Further to this debate, common law countries asked themselves whether the notion of law included solely the notion of statutory law or also the non-written notions often found in the stare decisis system of case law and soft law. The decision of the participants was definitive on the matter in that it included all sources of laws, whether of a traditional, case or statutory source[43].  

It results from this interpretative statement that the notion of legality implies a notion of legitimacy, that is a pre-established legal norm of law originating from a competent legislative authority. This was deemed necessary in order to protect individuals from abuses and arbitrary actions of the executive and judiciary branches of governments. Also, the criteria of the exigencies cited above guarantee that the limitations are only legitimate if they meet the norms justifiable in a just and democratic society. Since the Universal Declaration made a direct reference to the Charter of the United Nations in its Article 29(3), by stating that these rights and freedoms cannot be fully exercised in contradiction to its aims and principles, it appears clearly that the legitimacy of the universal system has a specific and independent sense[44].  

At the regional level, this question of legality has been retaken in the Inter-American System in Article 30 of the American Convention, whereby: “The restrictions (…) may not be applied except in accordance with the laws enacted for reasons of general interest and in accordance with the purposes for which such restrictions have been established.”[45]. And this question was rapidly addressed and dealt with, at unanimity, by the advisory opinion of the Inter-American Court at the request of the government of Uruguay: “[it] means a general legal norm tied to the general welfare, passed by democratically elected legislative bodies established by the Constitution, and formulated according to the procedures set forth by the constitutions of States Parties for that purpose ”[46]. For the Inter-American Court, there exist a clear link that is inseparable between legality, democratic institutions and the rule of law. It reaffirms the notions of the Habeas Corpus advisory opinion[47]. 

The European Convention follows a similar line of thought when concerned with the principle of legality. In the Case of Silver and Others[48], the European Court of Human Rights confirmed the notion of its previous cases whereby the “conditions, restrictions or sanctions of the law” are to be interpreted first as a reference to the fact that interferences in the exercise of human rights must have a juridical base in national law and that this must be a priori because the Court confirms only later that this includes common law with statutory laws.[49].  

The concept of legality forged a minimal norm of the respect of national laws within the larger interpretative concept of international instruments when concerned with the application of derogatory norms. Still, such a norm remains incredibly fragile in the European system, in particular in the case of countries having a centralised government or a unitary method of governance. Through the concentration of power, ones concentrates the States’ decision and influence in the determination of what constitute a legitimate suspension of rights and a derogation to the European Convention.  Simply by restraining the protections given by the national legislation, a State can easily overturned or circumscribe the provision of the European Convention. Still, the basis of the European Convention is that of a voluntary system of ratification and therefore there is some understanding that States do not forgo every aspect of their sovereignty upon ratifying it and therefore interpretation is left in part to their margin of appreciation, until review by the judicial process if necessary. As such, we can therefore assert that their exist limitative systems of derogation that permits to suspend rights and that the European Convention’s system is in part as much as risk as even the African Charter’s system if one considers only its own limitation of legality. The American Convention system would seem more established that these both at first glance.  

But this would not be a complete understanding of these different systems, as it would not take into account the very rights they permit to derogate from and the limitations it permits to impose. As opposed to the limitations of the general clauses and clauses of derogations of the Universal Declaration and of the International Covenant relative to Economic, Social and Cultural Rights[50] at the universal level, and of the African Charter at the regional level, both the European Convention and the American Convention adopt the approach of the International Covenant Relative to Civil and Political Rights. Article 27(2) of the American Convention edicts : “ 2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. ”[51]. 

By contrast, Article 15(2) of the European Convention states : “ 2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision”[52]. This compares to the International Covenant Relative to Civil and Political Rights at its Article 4(2) which proclaims: “2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.”[53]. On this comparative basis[54], one can represent schematically the protection offered by each system, whether universal, American or European by comparing which rights are non-derogable in all and any circumstances. These cannot be suspended, limited or otherwise infringed upon in any circumstances or for any reason whatsoever. 

A synthesis of these non-derogable rights clearly shows that solely the rights which are universally recognised, and those of the two Covenants of 1966, due to their different reach are: the right to life, the prohibition of torture and inhumane and degrading treatment, the interdiction of slavery and the principles of legality and non-retroactivity. Within the concept of legality, it is important to note that none covers the right to an equitable judgement and that the European Convention does not contain the recognition of the legal personality.[55].  

It is possible, on this basis, to distinguish rights protected as “fundamental rights and freedoms”, which are generally protected within international universal or regional instruments, and a “minimal non-derogable core” of human rights, which can perhaps be seen as fundamental rights in a stricto sensu interpretation[56]. Those not part of this core may not survive limitations during periods of emergencies and situations of exceptions.  

Further, the question is to know whether one can claim a universal application of these rights as their force of law remains to be proven. Indeed, in the international legal regime, only customary law is applied universally, while treaty law can only be opposed to states which have ratified the conventions and treaties under discussion. We must then discern between the rights opposable to all and those opposable to the states which have signed and ratified a treaty, this in accordance with their sources.[57].  

The first source applicable to International Human Rights Law is of course the one that demonstrates the explicit consent of states to be held accountable: treaty law. It is important to distinguish between treaties, done in multilateral fashions of in a regional setting, and declarations. 

A treaty is an agreement between two states or more, and/or with an international organization. It is a negotiated and agreed document, to which a state adhere freely upon ratification. A declaration is a statement issued either by a state, in the case of unilateral declaration of intent, or by an international organization to state the intentions and aspirations of such an organization and its members. A treaty is opposable to states and legal redress can be obtained for its breach because it contains formal obligations to which a state has voluntarily subscribed. A declaration is usually not opposable to states; it provides for a restatement of a will or an intention to reach some objective, but it itself, it does not carry a constraint of opposability.  

This, however, is not absolute: a declaration may become opposable as would a treaty if it is recognized and adhered to by states, either because they reached such a conclusion in agreement or through the formation of a customary norm which recognizes its evolution into an opposable norm of international law. The American Declaration of the Rights and Duties of Man is such a declaration which started as non-opposable to states members of the Organisation of American States (OAS) in 1948 and became opposable over time because the states member adopted it as a part of the Charter of the Organisation of American States[58]. Further to this recognition, both the juridical organs of the OAS, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have reached the legal conclusion that it has become opposable to states[59]. 

Universal Protections Applicable Regardless of Regions 

Since there are such cases of development from non-opposable to opposable norms in a regional convention, the question becomes very important with regards to the potential opposability of the Universal Declaration of Human Rights made by the General Assembly of the United Nations in 1948. As the title mentions, it is a declaration and therefore, in principle, non-opposable unless there has been a development. Three theses are presented in this regard.  

The first thesis presents the Universal Declaration as opposable in the measure whereby its dispositions are based upon the state obligations of the Charter of the United Nations.[60]. The second gives it a limited opposability, non imperative as such, whereby a violation to the Universal Declaration is not ipso facto considered as illicit under international law if the state takes corrective measures. A state which would not take such measures would then become accountable for it. Finally, the last thesis is that the Universal Declaration is opposable in full.[61]. From the 1960s, already, some commentator argued the superior character of this document since it was accepted at unanimity[62]. This acceptation without opposition is seen under this light as a common will of the states to proclaim an opinio juris and that its violation by a state would entail state responsibility because of its violation to a norm of international ethic. Also, these commentators argue that state practice proves with its influence on all subsequent conventions of human rights and treaties that it has by far surpassed the status of a simple decision by the General Assembly.[63]. 

This argument is notably supported by a portion of academics and practitioners of the time, whether from the West or the East. For example, Blishtshenko declared in 1971 that the Universal Declaration is not only a mandatory document with a moral value but a document with a legal force, which implies the recognition of its dispositions by states and their applications, even in case of armed conflicts.[64]. 

However, these seems to have been a tad premature, as it precedes in the abstract without taking the limitative clauses into account, whereby: “The Travaux préparatoires make it clear that the overwhelming majority of the speakers did not intend (…) the Declaration to become a statement of law or of legal obligations, but a statement of principles devoid of any obligatory character, and which would have moral force only.”[65].  

Richard B. Lillich, a most renowned jurist of human rights and humanitarian law, mentions that we can find in the debates of the Travaux Preparatoires a suggestion from which the Universal Declaration is considered a complement to the United Nations Charter., or as an interpretative instrument, or finally as the formulation of the general principles of law recognised by civilised nations, as understood under Article 38(1)(c) of the Statute of the International Court of Justice[66].  

This later argument suffers from a lack of solid bases. As Lillich remarks, the General Assembly of the United Nations does not have the authority to interpret the Charter of the United Nations. Furthermore, its recognition as a formulation of the general principles of law also suffers from profound deficiencies. Indeed, while one may take a liberal interpretation of article 38(1)(c) of the Statute of the International Court of Justice to recognise many sections of the Universal Declaration as general principles or law, one cannot use this argument to explicitly recognise by it a codification of these principles[67]. As a result, one must distinguish between the force of law of treaties and of declarations. While treaties may be opposed to states, declarations cannot unless one can prove that its status has evolved in international law either through custom, practice or opinion juris of states.  

Of course, the Universal Declaration remains a matter of controversy. And it is the more so because it has been adjuncted a surveillance mechanism through Resolution 1503[68]. This resolution gives the Human Rights Commission a procedure by which it can examines complaints of violations to human rights and fundamental liberties. However, this procedure has a limited reach and the extent of its resolution is often misunderstood as all-encompassing. In fact, it does not give the Economic and Social Council a power of condemnation over states, but rather a softer power of inquiry and reconciliation. One cannot invoke the force of law over a power of inquiry as this mechanism rests on the cooperation of states[69]. Therefore, invoking Resolution 1503 to argue for the force of law of the Universal Declaration would be erroneous in premises. Therefore, one must conclude with the fact that, for the foreseeable future, the Universal Declaration does not have force of law. 

However, this is not the cases of the 1966 Covenants, which have been ratified by states and are treaties; as such, they are clearly and unarguably opposable to states. It is true that the universal mechanism it establish is weak[70], since the Commission examining the communications made to it can only draw the conclusion of the existence of a violation only after all the national recourses have been exhausted[71]. Nonetheless, such a conclusion may lead to a reference to the Security Council if the breaches are serious enough to entail a breach of peace or a menace to international peace and security. Nonetheless, the best hope of applying human rights, even though their sources are mainly universal at first, seems to rest with the regional instruments, such as those we have seen above.

Regional Protections 

For example, as one can see from the table of comparison of non-derogable rights seen above, apart from the International Covenant Relative to Economic, Social and Cultural Rights, it appears at first that the European Convention protects fewer rights than any other instruments. Indeed, solely the four rights enumerated above can be seen as being non-derogable. 

In the case of the European system of protections, the case law does provide for a mature set of protections and does appear to have proportionality and due diligence well-entrenched within its corpus juris when concerning the right to life. Whether from the Commission’s previous decisions, such as in the cases of  Steward[72], of Farrell[73], or of Cyprus v. Turkey[74] or the Court’s decisions such as in McCann[75], the differentiation between lawful deprivation of the right to life and unlawful ones has been extensively explored and have resulted in a solid and logic system of law. 

In the case of the right to freedom from slavery and servitude, the Court has rarely had to deal with cases of forced or compulsory labour and many of the cases sent to it were either frivolous or groundless. Overall, the best known example is that of Van Droogenbroeck, which concerned the obligation for a prisoner to earn money during his detention in order to save a certain amount prior to his release from prison[76]. In most other cases, it is clear that the member States of the Council of Europe have had a low ceiling of tolerance for slavery and servitude and have enacted and implemented the proper legislation to curb abuses at the national level[77]. 

Where the European Convention is weak is definitely where it concerns judicial guarantees. While the first two sentences of its Article 7(1) are very comparable to that of Article 15(1) of the International Covenant Relative to Civil and Political Rights, its third sentence lacks the protection of guilty parties to benefit from the lighter penalty available. Still, the guarantees do provide for protection of ne bis in idem with the addition of Article 4 of Protocol 7[78], and does provide for the principle of nullum crimen, nulla poena sine lege[79]. Overall, these protections certainly are limited compared to that of the Inter-American regime. 

Perhaps where the Court held on the longest to a wrong interpretation of the European Convention is where it concerned itself with the right to freedom from torture, inhuman, degrading treatment and punishment at Article 3. Too long did the Court uphold its own interpretation of the case of Ireland v. United Kingdom and too long did it impose an unduly strict interpretation of a severity/intensity test. Too long it interpreted the European Convention within its own syllogisms, and forgot to add interpretative additions from applicable international law such as the Convention against Torture. Only with the Case of Aksov a breakthrough was achieved and the threshold of what constitute torture has been lowered, finally applying not the Declaration against Torture, but the Convention against Torture. 

Meanwhile, both the Inter-American and the African systems are developing, now with increasing speed since the adoption of enhancing instruments[80]. As such, through the development of regional systems, whole regions have been stabilised in the application of human rights whether in times of peace and troubles, such as Western Europe through the 1950s through the 1990s, despite the Cold War and terrorism, and then in Central and Eastern Europe through the transitions of the 1990s after the end of the world bipolarity, or again in the Americas after the end of ‘international socialism’ and the development of democratic regimes. Even Africa, long-plagued by the war by proxy and the trampling of human rights everywhere, does progressive development of the respect of human rights appear to be on the up-take. 

However, these developments are in times of peace or internal disturbances. The real question becomes to know what protections of human rights do exist in times of armed conflicts. 

Human rights applicable in armed conflicts 

As opposed to universal or regional norms of human rights law, the existence of an armed conflict is the sine qua non condition for the law of armed conflict to apply. If the existence of a conflict is not proven, one cannot invoke the protection of its legal regime. Furthermore, the existence of an armed conflict, especially in the early stages, is always difficult to prove. Let us take as an example the most recent violence between Israel and Lebanon, starting on June 25, 2006 by a raid of Hamas fighters against an Israeli position on the border with Gaza and killing 2 Israeli soldiers and kidnapping one as hostage for a prisoner exchange. 

At that stage, there was a use of force whereby terrorists crossed a border from the territories of the Palestinian Authority by use of a tunnel, emerged on Israeli soil, engaged Israeli forces and retreated after accomplish parts or all of their objectives. Was this an act that would fall under the premises of the law of armed conflicts? 

While this may be arguable as being so, it is not clear and the argument to the opposite may be made. Indeed, while there has been a clash of arms, there has not been a mention of a state of armed conflict at that time. Since the attack came from another semi-autonomous territories’ national, and since Hamas and the Palestinian Authority are not High Contracting Parties to the Geneva Conventions, nor the Additional Protocols, they cannot claim its application to their fighters. 

What would remain is solely the application of Article 3/common GC 1949, as this applies in contradistinction to international armed conflicts to encompass all other kinds of armed conflicts[81]. This would however be a double-hedge protection for Hamas fighters as this article also prohibits the taking of hostages, which their member clearly committed and claimed after the fact. Regardless, it is clear that the intensity and the seriousness of that particular incident created an armed conflict, albeit one only covered by the protections of Article 3/common GC 1949. 

Following this incident, Israel undertook military actions on June 28, 2006 by entering the Gaza strip in an effort to rescue the kidnapped soldier, root out insurgents and take out positions from which Palestinians had been firing home-made Quassam rockets into Israeli territory. On July 12, 2006, bolstered by the Hamas action of June 25^th, Hizballah fighters attacked an Israeli position from Lebanon in Northern Israel. In this attack, 8 Israeli soldiers were killed and 2 kidnapped. Again, as for the events of June 25^th, Hizballah is not a High Contracting Party and the sole applicable instrument would be Article 3/common GC 1949, for the same reason as above.

Israel then undertook harsh retaliation measures against Hizballah targets and other targets that supported Hizballah. This resulted in effect in attacks against the whole infrastructure of Southern Lebanon and attacks on ports, airports and the capital of Bayreuth in an effort to destroy means of displacements of the kidnapped soldiers to recuperate them, destroy the support of Hizballah’s infrastructure and stocks of munitions, destroy Hizballah’s credibility and cripple its organisation and personnel while also pressuring the Lebanese government to disarm Hezbollah. This situation was further compounded by the fact that Hezbollah is linked to Hamas and both are supported financially and logistically by Syria and Iran. Furthermore, Hezbollah does have 23 elected member of the Lebanese parliament on a total of 128 members, has the only standing force beside the Lebanese army in Lebanon and, at the time of the beginning of the hostilities, had two cabinet members of the Government of Lebanon. 

By the end of July 12, 2006, Israel had already retaliated and warned of continuing military attacks. By the 13^th, it had bombarded Bayreuth’s airport and begun bombing the road infrastructures and ports. By the 19^th of July, ground incursions took place along the border to secure an area against Hezbollah rockets launching places.   

By this point, Israel’s armed forces had used bombardments against coastal installations, civilian infrastructure used for military purposes (roads, bridges, electrical generation plant), destroyed the offices of Hezbollah, deliberately targeted the head of Hezbollah, destroyed over half of Hezbollah ammunition and rockets, and continued its incursions within Lebanon, while stating that troops will withdraw once the destruction of Hezbollah has been accomplished. On the morning of July 21^st, news reports indicated 258 civilian killed with 582 wounded in Lebanon, while Israel stated 19 military personnel dead and 15 civilian killed by Hezbollah rockets targeting the tourist industry in Haifa and other coastal cities of the north of Israel. 

At that point, one notices that Israel does not ‘as such’ deliberately target Lebanese forces; its target is Hezbollah. Nonetheless, the Lebanese army attempts to defend its territory against the incursions of Israeli forces and against warplanes. The result is that of a double conflict, asymmetrical in nature, but nonetheless amounting to a international armed conflict, to which the full regime of the Geneva Conventions and/or Additional Protocols may apply (Lebanon has ratified both Additional Protocols, while Israel has not signed nor ratified either). 

The conflict ended with Hezbollah’s victory in strategic terms against Israel (since its only objective was to survive the onslaught and therefore point out Israel’s failure in its eradication of the group) after a month of fighting and 116 Israeli soldiers, 43 Israeli civilian lives, 530 Hezbollah’s fighters and over 1500 Lebanese civilians killed. United Nation Security Council Resolution 1701 put an end to the fighting, but Israel looks occupied a ‘buffer’ zone until such time as the reinforced UNIFIL mission fills its ranks with European Union forces and South-Asian troops, all the while living with the illusion of disarming Hezbollah and keeping Israel at bay.  

The United Nations High Commissioner for Human Rights, Louise Arbour, warned that both parties could be held liable for possible war crimes[82]. Therefore, the regime protection would apply to all after the events of July 12^th, 2006. But what of the populations within these two countries. During this state of war, what can Israel and Lebanon do to their citizens, residents and foreigners and what are they prohibited to do? 

This is the whole dialectic of armed conflicts, whereby the rights of combatants are protected and civilians are afforded protections by the opposing forces, but whereby a state may decide to impose harsh conditions such as evacuation, forced labour or conscription on its own citizens. 

This is because of the separation of the jurisdiction of international humanitarian law, resting on the “Geneva stream” and the protection from means and methods of combat from the “Hague stream”, both applying only in periods of armed conflicts under rationaes conditionis, tempi et loci. They attempt to offer the maintenance of fundamental rights and freedoms through their conventions and protocols[83]. However, its jurisdiction is limited to four situations: international armed conflicts, non-international armed conflicts, ‘internationalised’ non-international armed conflicts and situations of crisis. The application of the law of armed conflicts depends on the intensity of the conflict, its geographical spread and its belligerents.        

In the case of international armed conflicts, the Geneva Conventions apply to all states which have ratified them (all but 2, if one excludes new states to which the law of treaty succession applies or might be contested), and which edicts its jurisdiction in article 2 common to these conventions, as well as to Additional Protocol I under its article 1(3)[84]. In the case of non-international armed conflicts, which are more and more predominant, the situation becomes even harder as one must evaluate the intensity of the conflict and the organisation of the belligerents to know whether article 3 common to the Geneva Conventions of GC 1949 applies and if it is complemented by Additional Protocol II. This latter consideration is not only concerning whether or not a state has ratified the protocol, but because the level of intensity it requires is much higher than the level required for the application of Protocol II[85]. 

As for article 3 common to the Geneva Conventions of 1949, it is often qualified of mini-convention, as it contains the rights of protected persons in all situations during an armed conflict of any kind[86], enumerating the basic protections against which combatants and civilians are all entitled[87]. It is an unreductible minimum and is composed of four basic sets of protections that we have identified above in times of peace or of internal troubles[88] and enlarging its reach to other protections, such as that against mutilations. Protocol II enlarges even more these protections through its article 4[89].  

But again, one must be clear. While article 3 common to the Geneva Conventions of 1949 applies to all conflicts, Protocol II only applies under the conditions of its article 1(1) which edict : “1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” [90]. Only if under a responsible command and controlling effectively a territory permitting the conduct of sustained and continued military operations can the protections of Protocol II be invoked. This is only attained by insurgent forces at the operational stage of the “liberation phase”[91]. This is complicated enough in cases of non-international armed conflicts, but become even more difficult to decide upon in the case of ‘internationalised’ armed conflicts.  This springs also from Nicaragua[92] and was confirmed in Tadic[93].  

In effect, the problem sprung from the Cold War’s ‘war by proxy’, whereby a third-party state supports one or the other of the protagonists. This was the case in Nicaragua, when the United States supported the Contras rebels against the Sandinista regime during its civil war. The International court of Justice differentiated in this affair the dependence of the contras from the effective control of the American government on their actions[94]. From this differentiation, it determined that in an armed conflict, the participation of a third state can implicate the ‘internationalisation’ of a conflict, but with regards to this state only. 

In this case, the Contras were deemed to be subject only to article 3 common to the Geneva Conventions of 1949, while the United States were subject to the application of the full range of the Geneva Conventions[95]. The applicable regime must therefore be established with regards to the party concerned and the offence concerned.  

This was confirmed in the first instance of the Tadic case. As in Nicaragua by the ICJ, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY), analysed the conflicts in the former Bosnian territories of Yugoslavia in the light of knowing whether the Serbian forces of Bosnia-Herzegovina remained under the effective control of the government of the Federal Republic of Yugoslavia (RFY), in order to determine if grave breaches of the law of armed conflict was imputable to it.[96]. It found that the RFY was not. However the Appeal Chamber took another approach, asking instead if acts accomplished by non-state agents can bring about state responsibility, ‘internationalising’ a non-international armed conflict and in fact making it an international armed conflict. This would bring about state and personal responsibility of grave breaches of the law of armed conflicts[97].  

Confronting the test of responsibility of Nicaragua, the Appeal Chamber of the ICPY distinguished situations where a state mandates individuals to commit illegal acts from situations where a state mandates a states to commit legal acts, but where such individuals act ultra vires (outside of their range of devolved powers). The Appeal Chamber concluded that article of the International Law Commission’s Project on State Responsibility imputed such responsibility on the Federal Republic of Yugoslavia[98]. It did so not because of a mandate of actions, legal or otherwise, of the FRY over Bosnian-Serb forces in Bosnia-Herzegovina, but because it found that the FRY had effective control over the Bosnian-Serb forces[99]. As such, this created an internationalisation of the conflict, since it now implicated directly the FRY as a party to the conflict and made Tadic an agent of the state[100]. Therefore, the Geneva Conventions applied in full. If Protocols I or II had been ratified, their regimes might have been applicable, depending on the rationaes conditionis, tempi and loci. 

As we can see, there is no doubt that there is a basic protection of fundamental rights guaranteed in the legal regimes applicable to all armed conflicts, albeit with major differences of jurisdiction and application. The question is now to know what protections are offered whilst no armed conflicts are taking place, but rather during times of internal troubles, disturbances and emergencies, which will be referred to as “situations of exception”. 

In these cases, human rights may be limited or suspended and the protections of international humanitarian law remain inoperative. There is what is called the ‘gap’, the legal void, between international human rights law and international humanitarian law. 

The Protection of Human Rights at All Times 

The legal void that exists in situations of exceptions is due to the difference of application of the treaties pertaining to international humanitarian law and international human rights law as described above. However, not solely the jurisdiction is an obstacle to the establishment of minimal norms of protection of human rights applicable at all times, or “minimal humanitarian standard”. 

Added to the limitation and derogation contained in the human rights instruments we have seen with regards to international humanitarian law, we must also consider the legal status of the non-state entities it’s the context of the systems of protections of human rights, and the fundamental limitation they carry with their limitative clauses and derogation clauses[101]. 

Such groups are not bound by international or regional treaties; the universal and regional mechanisms have only effects upon states parties to their constituting treaties. Furthermore, human rights treaties protect human rights in the context of the relation between the individual and the state, not between individuals themselves. While the preamble of the Universal Declaration and the 1966 Covenants recognise the individual obligation to promote human rights, it does not explicitly give a legal responsibility between individuals even in relation to a violation of this obligation[102].  

While individual responsibility in international exists in some treaties (e.g. slavery, genocide, international court of justice), the United Nations’ Secretary-General has warned against seeing an over encompassing obligation as this would give incentive for repression against members of armed groups and this repression itself would be contrary to the principles of the protection of human rights[103]. 

Also, the protection systems are themselves limited in effect because they lack specificity in the breadth and width of the rights protected. In fact, international humanitarian law provides a clearer outlay of the rights protected than do most of the treaties pertaining to human rights, but as they do not apply in situations of exception, this does not help in providing for a clear protection. In international human rights law, most rights and freedoms are mentioned in general terms and are free to be interpreted liberally or conservatively[104]. This legal void leaves an abyss where rights are lost to individual.  

This situation has been known for long. Already in 1968, this problem is recognised in Resolution XIII of the International Conference on Human Rights held in Teheran from 22 April to May 1^st of that year[105]. For the next twenty years, the problem has been mentioned and cursorily examined, but precious little was accomplished. 

Under the efforts of Hans-Peter Gasser and Theodor Meron, and many others who brought forth their contribution, efforts were made to identified the rights to be protected. These authors converged together at the Institute of Human Rights of the University of Turku, Finland, and drafted the Turku Declaration[106]. 

The approach taken was that, under the quasi-universal character of the Geneva Conventions of 1949[107], the norms of human rights’ protection that it contained have become opposable to all, even those states not party to the Geneva Conventions, and even those who would attempt to denounce them since the Vienna Convention on the Law of Treaties prohibits denunciation or interpretative declarations incompatible with the aims and principles of a treaty[108]. This lex specialis is even clearer as article 60(5) prohibits such denunciation against treaties of a humanitarian character with regards to the protection afforded by them to protected persons[109]. 

This reasoning is further pursued by stating also that no state shall be absolved from responsibility for violations of obligations of international law despite a denunciation if that obligation exists independently of the denounced treaty, for example an obligation of jus cogens or contained in another treaty not denounced[110]. Even if a customary norm is codified and that the treaty containing this codification is denounced, the customary norm continues to exist parallel to the treaty norm and must be submitted to[111].  

This recognition of the customary norm is recognised in the Martens Clause seen above[112]  to remain under the principles of humanity and from the dictates of public conscience[113]. These principles of international law are the lex corpus in which custom evolves. But the Martens’ clause goes further by associating this to the public conscience. To many who drafted the Turku Declaration, amongst which Professor Meron, this weights if not legally, at least morally, in a manner to force states to recognise as universal the protections of human rights . 

He bases his opinion on the Barcelona Traction Case[114], in which the International Court of Justice recognised the erga omnes obligations, meaning those obligations applicable to all at all times. The interpretation from this case suggests that the obligation to respect and to ensure respect contained in article 1 article common to the Geneva Conventions of 1949 would be such erga omnes obligations, as applying to all and are already accepted in the lex corpus of international law since they have a quasi-universal recognition[115].  

Since article 3 is recognised in a quasi-universal manner, it is argued that the rights it contains are of such an elementary ethical order and retake in so many international treaties of human rights and humanitarian law that the convergence of these norms forms the basis of a customary right applicable in situations of exceptions[116]. It is therefore aimed to bring together the fundamental rights seen in the case of international human rights law and bring them together with the basic human rights’ protections contained in international humanitarian law in order to created a non-derogable ‘minimal humanitarian standard’, that is a core of fundamental right that cannot be limited, suspended or violated at all times. 

What is attempted is to created, through the unifying of the Martens’ Clause, the inclusion of recognised norms of jus cogens and of erga omnes obligations, is a renewed and modernised version of the jus gentium[117]. This means that what is attempted is to create an ethical law system based upon rules of natural law applicable to all at all times. It is argued that an advantage of such a system would be to formally recognise the international legal norms of natural law, which are inherent to the individual[118], leading to its absolute non-derogable character. This approach is further supported by the American Declaration, which recognises explicitly the principles of natural law[119] and of the African Charter which permits the African system to found its applicable principles in other instruments as interpretative sources in order to find the most favourable to the individual safeguarding of human rights[120]. In so doing, this brings forth a universal interpretation of the rights to be recognised and of their application.  

This becomes even more so if one interprets erga omnes under the guiding lights of articles 55 et 56 of the Charter of the United Nations[121]. Still, it is the lack of specificity that remains problematic. While the Charter of the United Nations and the Universal Declaration draw the overall rights, it is the multi-lateral and regional treaties, to which a relative few states are part of, that determine the reach and jurisdiction of the protections contained thereof. 

This is why it is argued that norms applicable in situations of exceptions should be found through the powers contained at article 38(1)(c) of the Statute of the International Court of Justice[122]. By applying general principles of law, the ICJ can bring about the maturation of these norms so they can be incorporated as jus cogens in this new jus gentium. The advocated approach therefore aims at multiplying the references from one treaty to another in order that the norms contained wherein are progressively incorporated in international judgements and therefore that their opposability to states be recognised as coming from their status as jus cogens in international law. One step of this approach was to draft the rights to be recognised and this was done in a large part through the Turku Declaration.