The Universal Declaration of Human Rights represented a step forward in the pursuit of the ideals of world peace. There is no doubt that it has resulted in the advancement of international law and the creation of institutions aimed at safeguarding fundamental rights.
In this text, we will address the issue of the internationalization of human rights and the mechanisms that have emerged for their protection.
1. Characteristic Features of the Magna Carta of 1215
When discussing the historical antecedents of documents that proclaim human rights, attention must be given to the Magna Carta of 1215. Many authors regard this instrument as a kind of “cornerstone of liberty and defense against arbitrary and unjust law.”¹
Víctor Orozco Solano, in his work “Pre-Constitutional Norms in Relation to International Law,” identifies the following characteristic features of this text:²
- The rights recognized in the Magna Carta respond to customary practices or principles, to which a natural law foundation is also attributed.
- The document has the merit of recognizing rights for certain individuals based on their belonging to specific social estates and for very concrete purposes.
- Regarding its legal nature, this document constitutes positive law and could be invoked by its holders before courts of justice.
- The drafting technique of the document is closer to private law than to public law.
From the foregoing, it can be understood that the English Magna Carta, as a reference point in the development of rights, is closely linked to the historical reality experienced by England at the time of its creation. Some authors describe it as an enumeration of customary privileges within a context in which the consolidation of the modern state had not yet occurred.³ This perspective does not seem unreasonable, since an analysis of its characteristics reveals that its objective was not the universality of rights.
Within English law itself, there are other documents that may also be considered preludes to the recognition of universal rights, such as the Petition of Right (1628) and the Bill of Rights (1689). These documents are identified by María del Carmen Barranco, in the previously cited work,⁴ together with the Magna Carta, as part of the English model. They are characterized by providing concrete responses to the historical problems faced by English society at the time.
However, when reviewing—chronologically—the antecedents of human rights declarations, it is also necessary to consider other instruments, such as the French Declaration of the Rights of Man and of the Citizen, which is regarded as a fundamentally rationalist text. Unlike the English documents, rights in this declaration are presented in an abstract and universalist manner.⁵
2. Characteristic Features of the American Declarations of Human Rights
Attention must now be turned to America. European developments constitute mandatory antecedents for the evolution of human rights in this region of the world.
María del Carmen Barranco Avilés, in her aforementioned essay on the universality of rights, highlights among the initial foundations of human rights the events that took place in the United States during its independence, the process of drafting the Constitution, and its first amendments.⁶
Víctor Orozco Solano, citing J. Llobet in his work Human Rights in Criminal Justice, lists the characteristics of the declarations adopted in America as follows:⁷
- Their foundation reinforces natural law legitimacy, as customary justifications for freedoms are abandoned.
- Rights lose their association with specific social estates or groups and instead belong to all citizens of a state, or to all human beings by the mere fact of being human.
- These texts are more systematically developed than those of the Middle Ages and were conceived as foundational instruments of public law.
3. The Process of Internationalization of Human Rights
The antecedents examined above, originating in Europe and the United States, did not encompass humanity as a whole. In both the United States and Europe, categories of citizenship continued to exist, as did the acceptance of slavery.
Following the Second World War, states were compelled to reconsider the validity of rights, their scope, their obligations, and the guarantees associated with them.
The internationalization of human rights was necessary, and legal doctrine agrees that the most visible aspect of this process, in juridical terms, is manifested within the United Nations system. To such an extent, author Víctor Orozco, citing Mariño Menéndez,⁸ states that this process has facilitated the achievement by human rights of a strict supra-state dimension and legal status, removing their effective enjoyment from the presumed arbitrariness of states.⁹
Within this process of internationalization, the Universal Declaration of Human Rights constitutes the first link in the chain of actions carried out by the United Nations. It gave rise to legally binding instruments of international law related to human rights, such as the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
4. Control Mechanisms Available to the Human Rights Committee Regarding the International Covenant on Civil and Political Rights
Three techniques are employed to monitor compliance with the Covenant. The first consists of reports, which constitute a conventional, non-contentious mechanism whose purpose is to assist and cooperate with states in the promotion of human rights.¹⁰
The second technique is established in Article 41 of the Covenant, which provides that a State Party may inform the Committee—provided it has recognized the Committee’s competence—that another State Party is failing to fulfill its obligations under the Covenant. This is a conventional mechanism whose purpose is for the Committee to determine whether or not a violation of the Covenant has occurred. If a violation is found, the condemned state is obliged to adopt the form of reparation determined in the Committee’s decision.¹¹ In order to exercise this mechanism, the states involved must have accepted the Committee’s competence.
The third technique is the individual complaint. Indeed, “to improve the effective enjoyment of human rights, it is as necessary—or even more necessary—than their promotion and proclamation through conventional texts, to develop verification and control mechanisms that effectively protect human rights.”¹²
This type of complaint is considered the most advanced technique within the Covenant system, insofar as it offers protection to individuals by granting them the possibility of submitting a complaint before an international body.¹³ The processing of this type of complaint…
From my perspective, reaching the point at which we now speak of human rights of different generations represents a clear success of the Declaration signed seventy years ago.
However, this reflection has also shown me how much remains to be done for human rights to be accessible to everyone, everywhere, and at all times. As a citizen of the world, I can say that in many places the principles of the Declaration remain nothing more than empty words. Today, we must pause—just as was done seventy years ago—and reflect on what has been achieved and on what still needs to be understood.
The world continues to be marked by deep inequality: passports remain borders that separate rights from one place to another; access to quality education is not universal, nor is access to health care; penicillin became accessible to all, yet there are treatments today that are treated like auctioned jewels, while people die simply because they lack the money to bid for them.
There are privileges that must be dismantled, and we can only hope that it will not take another war to place us in context and force us to confront our responsibilities with awareness and conscience.
Bibliography
Barranco Avilés, María del Carmen. Diversidad de situaciones y universalidad de los derechos. Cuadernos “Bartolomé de las Casas”. Instituto de Derechos Humanos Bartolomé de las Casas, Universidad Carlos III de Madrid. Dykinson, S.L., Madrid, p. 17 and p. 468.
López Martín, Ana Gemma. La reclamación individual como técnica de control del respeto a los derechos humanos. ¿Comité de Derechos Humanos de Naciones Unidas o Tribunal Europeo de Derechos Humanos? Available online at: https://eprints.uc.es/6999/1/RECLAMACIÓN_INDIVIDUAL.pdf. Accessed October 9, 2018, 10:30 a.m.
Machicado, Jorge. Carta Magna de Juan sin Tierra de 15 de junio de 1215. Centro de Estudios de Derecho, Panalysis. Report No. 3. Available online.
Mariño Menéndez, F. Antecedentes doctrinales e institucionales de la protección de los derechos humanos. In: Historia de los Derechos Fundamentales, Vol. II, 18th Century, Vol. III: El Derecho positivo de los Derechos Humanos, Derechos Humanos y Comunidad Internacional. Dykinson, L.M., 2001, p. 402.
Orozco Solano, Víctor. Las normas preconstitucionales frente al derecho internacional. Dykinson, Madrid, pp. 294, 300, 302.
Rulloba Alvariño, Julia. El Pacto Internacional de Derechos Civiles y Políticos de 16 de diciembre de 1966. Editorial DILEX, S.L., Madrid, 2013, pp. 127–128, 138, 140.
