50th anniversary of ECHR

At its opening of the new Judicial Year on January 30, 2009 the European Court of Human Rights marked its 50th anniversary.

In his welcoming speech President Costa expressed:

The national courts help us to ensure that States respect the rights guaranteed by the
Convention, demonstrating the importance of domestic remedies and therefore the
principle of subsidiarity; if the Convention is a “living instrument” it is also because
you make it live. International courts show that the existence and expanded role of
numerous international judicial bodies make possible a joint effort to uphold justice
and fundamental rights....

The “resurrection of human rights” which occurred at the end of the 1940s was of
course ideological, but this ideology was ultimately carried forward by an almost
unanimous political wave of enthusiasm. At the United Nations the Universal
Declaration was adopted without a single vote against. It was a revolt (“never again”)
and an aspiration (for peace, justice and freedom).
More recently new threats and a new context have emerged: terrorism, crime (whether
organised or not), different types of trafficking. All this has created tension in public
opinion and in our societies and a tendency to give precedence to order and security.
The influx of clandestine immigrants driven by poverty and despair has an impact on
policies, but has also been accompanied by xenophobia, racism and intolerance, or
contributes to their growth. In the same way the connection which is, sometimes overhastily,
made between certain types of religious belief and violence, or indeed
terrorism, has exacerbated susceptibilities, yet freedom of religion is also a
fundamental human right. This requires dialogue and not insults....

Moreover, the ideology of the protection of rights can no longer rely on the
groundswell of support that carried it forward in the fifties. It has come up against the
difficulties of establishing or maintaining peace, the return of materialism and of
individualism, the extolling of national interests, and more recently the financial and
economic crisis which could force freedoms into second place. Bismarck’s old
expression “Realpolitik” has reappeared and is regularly cited.
The protection of human rights has thus become more fragile, more complex, but does
that mean that it must yield?
My answer is No. On the contrary, I would argue that it is necessary to consolidate
and breathe new life into these rights, to bring about their aggiornamento.
For the full speech

In this speech I sensed the attempts to elaborate on the current state of human rights law and enforcement. Also it was an attempt to briefly delineate the challenges that human rights have been facing in the 21st century world politics... Quite amazing how the age dictates new formulas and new approaches to emulate old and well-settled principles...

Human rights law

Learning international human rights law begins from learning about the core human rights treaties. These treaties are crucial because they provide the roadmap and structural basis for customary international law in this area. Then the next step is to read the case law of various international tribunals interpreting these treaties and how they relate to customary international law. And the case law is also interpreted by various international law scholars, publicists whose authoritative opinions make-up another major source of international law. The whole international law is a circle connecting treaties to practice, practice to case law, case law to scholarship and back to treaties... Of course, the whole circle is given light and energy by world politics.

For core international human rights treaties visit

'Positive law' vs. 'natural law'

When we talk about human rights, we think of post-World War II and Nuremberg trials because these were the major impetus behind the current human rights law. But human rights as a concept had been in existence long before. The problem was only that they were not expressed yet in an authoritative and obligatory way until 1948. Judge Tanaka elaborated this excellently in his dissenting opinion in 1966 I.C.J. 6, 250, 297-298 (July 18), in the case of South West Africa:

Human rights have always existed with the human being. They existed independently of, and before, the State. Alien and even stateless persons must not be deprived of them. Belonging to diverse kinds of communities and societies-- ranging from family, club, corporation, to State and international community, the human rights of man [woman] must be protected everywhere in this social hierarchy, just as copyright is protected domestically and internationally. There must be no legal vacuum in the protection of human rights. Who can believe, as a reasonable man, that the existence of human rights depends upon the internal or international legislative measures, etc., of the State and that accordingly they can be validly abolished or modified by the will of the State?
If a law exists independently of the will of the State and, accordingly, cannot be abolished or modified even by its constitution, becasue it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called 'natural law' in contrast to 'positive law.'
Provisions of the constitutions of some countries characterize fundamental human rights and freedoms as 'inalienable', 'sacred', 'eternal', 'inviolate', etc. Therefore, the guarantee of fundamental human rights and freedoms possesses a super-constitutional significance.
If we can introduce in the international field a category of law, namely, jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to the jus dispositivum, capable of being changed by way of agreement between States, surely the law concerning the protection of human rights may be considered to belong to the jus cogens.

Enough said. The problem is that while human rights law exists independently of the will of a given state, its enforcement still is very much dependent on the will of that state. Of course, with growing international tribunals, the states have many more pressures. Globalization and interdependence have resulted in even more pressures. But international law making/application is highly political, highly toxic, highly dependent on the will of state actors. With growing non-state actors, the panorama has become even more complicated. Even if states may comply with international law, there are numerous non-state actors who commit various atrocities that remain unpunished or half-way punished.

Nuremberg...

On October 1, 1946 the Nuremberg trials were over. Out of 24 Nazi high officials 22 received a verdict. Twelve were sentenced to hanging, three-- life imprisonment, four-- 10 to 20 years. Three were even acquitted of the charges. Adolf Hitler, Joseph Gebbels, Heinrich Himmler had committed suicide to avoid punishment...
Nuremberg trials marked the beginning of modern human rights law... The Turkish genocidaires had escaped punishment for the Armenian Genocide only because in 1915 the world was still devoid of the mechanism exemplified in International Criminal Tribunals set up post-World War II.