Monica Ostoni 2024/2025 IPLE, Unimi
INTERNATIONAL HUMAN RIGHTS LAW
Lecture 1: 3/04
Same sources and notions as those of IL
Important distinction between legal and moral rights:
- Law: set of rules established by a legitimate authority (usually a legislative body within the state)
- Morals: more an individual attitude
- Ethics: more of a social attitude (ex: cheating can be against ethics)
Ex: abortion is a human right that may (or not) be recognized by the legal system, but that is basically a moral
right (everyone has a personal feeling about it).
IHL deals with legal human rights provided by international law. Human rights is a field of international law
that has many different instruments.
Sources of IHRL
Regulated both by domestic legislation and international law.
The first regulation and attempts to regulate human rights belonged to domestic legislation:
- US Declaration of Independence (1776)
- US Bill of Rights
- French Declaration of the Rights of the Man and of the Citizen (1789)
Limit of domestic legislation → valid just for one state, it does not have the universal dimension of HR →
lacks the “human” characteristic (which goes beyond domesticity)
IHRL started after WWII: before the war the idea was that these rights existed, but only for specific situations
and individuals (ex: existence of a distinction between citizens of a state and foreigners) → They were not
applied to everyone.
States under international law had only the duty to respect foreigners with a minimum standard of treatment.
In lack of this minimum protection, the state of origin of the foreigner had the right to exercise diplomatic
protection → it was a right of the state, not the individual
o Ex: in the case of Giulio Regeni’s murder, the italian state could claim reparation for the damages
suffered by its citizen → It’s a matter regarding states’ cooperation.
Conditions required for diplomatic protection:
- Citizenship
- Exhaustion domestic remedies
Early regulation of the relationship between States and individuals/groups:
o Abolition of Slave Trade
o Humanitarian Law (laws of war/ius in bello)
o Protection of minorities
o Protection of workers (ILO)
International Labour Organization
Established in 1919 to reflect the belief that universal and lasting peace can be accomplished only it if is based
on justice.
It became a UN Specialized Agency → The ILO aims to promote workers’ rights, dignified human working
conditions and social security in general (see also Human Rights Social Security, International Protection); at
the same time, it aims to prevent States from gaining advantages in international competition by maintaining
a low level of workers’ right.
1
,Monica Ostoni 2024/2025 IPLE, Unimi
Not with the purpose to protect the rights of individuals, but to prevent the states to exploit workers and
maintain very low standards in order to be more competitive in the international market. Not a protection
of the workers themselves, but to prevent states form gaining advantages in international competition.
Slavery Convention of 1926
It defined slavery and slave trade and was adopted by the League of Nations.
Pursuant to its Art. 2, the Convention’s purpose was to ‘prevent and suppress the slave trade’, and to ‘bring
about, progressively and as soon as possible, the complete abolition of slavery in all its forms’.
This convention gave the right to the state to claim it only in case of a violation (and always only between
states).
INTERNATIONAL HUMANITARIAN LAW
- Set of rules which seeks to limit the negative effects of armed conflict. Rules aimed at protecting peoples
and restrict the means and methods of warfare. It is also known as jus in bello.
- It is the corpus on IL that seeks to make the war more “human” → protect those who are not or are no
longer participating in the war: civilians, wounded soldiers, prisoners of war, all those in need of medical
support etc. But also protect soldiers from warfare methods unproportionate → Main principle of
“humanity”
- It does not regulate whether a state may actually use force, this is governed by a distinct part of
international lay mainly set out in the UN charter → jus ad bellum
Before the Geneva convention there was the Convention for The Amelioration of The Condition of The
Wounded in Armies in the Field (1864) → it defined "the basis on which rest the rules of international law for
the protection of the victims of armed conflicts”.
1949 Geneva Conventions were mainly conceived to regulate international armed conflicts (except for
common article 3). They therefore regulated possible violation of the Conventions as a matter of pertaining to
international cooperation among states (generally, the state of nationality of the victims and the state to whom
the author of the violation belongs).
It is always the state that claims the violation of its rights (of its citizens) against another state to which we
attribute the responsibility of the violation → always a question of relationship between states
The modern revolution of IHRL is that it is not anymore simply a states’ relationship → nowadays, individuals
can directly claim a violation of their own rights. A victim can bring the state (another one of its own) before
the international human rights court.
Rights of Minorities
Individual is taken as a human being, not as a part of a minority etc. It’s the human characteristic which is
always highlighted.
Summing Up
Until WWII Human Rights existed in:
• Domestic systems → first source
• International treaties
o that had a sectoral nature, because they regard specific categories of people, rather than the human
beings in general
o whose majority was motivated by political or economic interests of States, rather than by
humanitarian concerns
o regulated relationships between States, not between States and individuals
2
,Monica Ostoni 2024/2025 IPLE, Unimi
Lecture 2: 4/04: The Origin of IHRL
Traditional International Law → According to established principle of international law, the (a treaty) could
only create obligations for state and not for individuals “according to well established principle of international
law, the Beamtenabkommen (a treaty between Poland and Germany) being an international agreement, cannot,
as such, create direct rights and obligations for private individuals”
Turning point: Nuremberg Trials
➢ Crimes against international law are committed by men, not by abstract entities and only by punishing
individuals who commit such crimes can the provisions of international law be enforced.
➢ In case of international crimes there is a dual responsibility: both the state and individuals that commit the
crime → states are not exempted from responsibility:
- PREVENTION: States have an obligation to prevent the crime (by using all possible methods)
- PROSECUTION: Once the crime is committed, the state shall prosecute the crime and give domestic
court’s jurisdiction over the international crime
The author of the crime is personally responsible towards the international community
LONDON AGREEMENT (Charter of the Nuremberg International Military Tribunal):
Art. 6: the following acts, or any of them, are crimes coming within the jurisdiction of the tribunal for which
there shall be individual responsibility:
a. Crimes against peace
b. War Crimes: crimes that are violations of international humanitarian law (laws and customs of war) →
serious violations of some important rules of IHL
c. Crimes against humanity → inhumane acts committed against any civilian populations
▪ Real novelty of this agreement is this last typology of crimes: before or during the war crimes
committed against the own population of the state were not considered as crimes under international
law → other states were not allowed to interfere. Here, for the first time, states realized that even a
developed state as Germany was able to commit the most serious crime of international human rights
law against its own population (Jewish deportation).
Duty bearers and rights-holders
Traditional international law After WWII
Right holders (States) → claim the rights of their Right holders (Individuals) → claim their rights
nationals from duty bearers from duty bearers
Duty Bearers (States) → undertakes obligations Duty Bearers (States) → fulfil a responsibility
towards other states towards rights holders (individuals)
The role of individuals in international law:
- Individuals are personally responsible for the commission of international crimes
- Individuals are entitled to rights provided by international law
They have a limited subjectivity under international law
UNITED NATIONS ANS HUMAN RIGHTS PROTECTION
The first instrument that included provisions about human rights was the UN CHARTER → main purpose of
the creation of the UN was to maintain peace → it was essential to protect fundamental human rights in an
international legal institution:
- Art. 1: the purpose of the UN is: achieving international cooperation in promoting and encouraging
respect for HR and for fundamental freedoms for all without distinction as to race, sex, language or
religion
3
, Monica Ostoni 2024/2025 IPLE, Unimi
- Art. 55 (c): the UN shall promote: universal respect for, and observance of, human right and fundamental
freedoms for all without distinction as to race, sex, language or religion
- Art. 56: All Members pledge themselves to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55.
DEVELOPMENT OF HUMAN RIGHTS:
Charter of UN (1945)
→ Universal Declaration of Human Rights (UDHR, 1948, not
mandatory)
➢ international covenant on civil and political rights (ICCPR,
1966, mandatory) &
➢ international covenant on economic, social and cultural
rights (ICESCR, 1966, mandatory)
Universal Declaration of Human Rights (1948)
Developed by a working group chaired by Eleanor Roosevelt (she was very active in the protection of human
rights). She chaired very well the group and in three years she presented to the General Assembly the text that
the UN approved. It is still a milestone → first time that under IL a legislation established human rights for all
human beings.
Being a declaration of principles, it is not mandatory. It was approved by a vote of states within the general
assembly (the most democratic body of the UN) → it provides the practice of states (customary IL) which is
made up by the behavior of states
• Preamble: a common standard of achievement for all peoples and all nations, to the end that every
individual and every organ and society, keeping this Declaration constantly in mind, shall strive by
teaching and education to promote respect for these rights and freedoms and by progressive measures
and observance, both among the people of Member States themselves and among the peoples of
territories under their jurisdiction.
• Art. 1: all human beings are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood.
STRUCTURE
First part is devoted to civil and political rights (life, liberty, slavery, torture, non-discrimination etc.): negative
obligations (state is required to abstain from doing something)
Second part (starting from article 22) is devoted to social and economic rights: positive obligations (state has
to actively take measures)
Human Rights Under Contemporary International Law
▪ HUMAN RIGHTS are the rights that all people have by virtue of being human beings.
▪ HUMAN RIGHTS are derived from the inherent dignity of the human person and are defined
internationally, nationally and locally by various law-making bodies.
Five Categories of Human Rights:
a. Civil → the right to be treated as an equal to anyone else in society
b. Political → the right to vote, to freedom of speech and to obtain information
c. Economic → the right to participate in an economy that benefits all and to desirable work
d. Social → the right to education, health care, food, clothing, shelter and social security
e. Cultural → the right to freedom of religion, and to speak the language, and to practice the culture of
one’s choice
4
INTERNATIONAL HUMAN RIGHTS LAW
Lecture 1: 3/04
Same sources and notions as those of IL
Important distinction between legal and moral rights:
- Law: set of rules established by a legitimate authority (usually a legislative body within the state)
- Morals: more an individual attitude
- Ethics: more of a social attitude (ex: cheating can be against ethics)
Ex: abortion is a human right that may (or not) be recognized by the legal system, but that is basically a moral
right (everyone has a personal feeling about it).
IHL deals with legal human rights provided by international law. Human rights is a field of international law
that has many different instruments.
Sources of IHRL
Regulated both by domestic legislation and international law.
The first regulation and attempts to regulate human rights belonged to domestic legislation:
- US Declaration of Independence (1776)
- US Bill of Rights
- French Declaration of the Rights of the Man and of the Citizen (1789)
Limit of domestic legislation → valid just for one state, it does not have the universal dimension of HR →
lacks the “human” characteristic (which goes beyond domesticity)
IHRL started after WWII: before the war the idea was that these rights existed, but only for specific situations
and individuals (ex: existence of a distinction between citizens of a state and foreigners) → They were not
applied to everyone.
States under international law had only the duty to respect foreigners with a minimum standard of treatment.
In lack of this minimum protection, the state of origin of the foreigner had the right to exercise diplomatic
protection → it was a right of the state, not the individual
o Ex: in the case of Giulio Regeni’s murder, the italian state could claim reparation for the damages
suffered by its citizen → It’s a matter regarding states’ cooperation.
Conditions required for diplomatic protection:
- Citizenship
- Exhaustion domestic remedies
Early regulation of the relationship between States and individuals/groups:
o Abolition of Slave Trade
o Humanitarian Law (laws of war/ius in bello)
o Protection of minorities
o Protection of workers (ILO)
International Labour Organization
Established in 1919 to reflect the belief that universal and lasting peace can be accomplished only it if is based
on justice.
It became a UN Specialized Agency → The ILO aims to promote workers’ rights, dignified human working
conditions and social security in general (see also Human Rights Social Security, International Protection); at
the same time, it aims to prevent States from gaining advantages in international competition by maintaining
a low level of workers’ right.
1
,Monica Ostoni 2024/2025 IPLE, Unimi
Not with the purpose to protect the rights of individuals, but to prevent the states to exploit workers and
maintain very low standards in order to be more competitive in the international market. Not a protection
of the workers themselves, but to prevent states form gaining advantages in international competition.
Slavery Convention of 1926
It defined slavery and slave trade and was adopted by the League of Nations.
Pursuant to its Art. 2, the Convention’s purpose was to ‘prevent and suppress the slave trade’, and to ‘bring
about, progressively and as soon as possible, the complete abolition of slavery in all its forms’.
This convention gave the right to the state to claim it only in case of a violation (and always only between
states).
INTERNATIONAL HUMANITARIAN LAW
- Set of rules which seeks to limit the negative effects of armed conflict. Rules aimed at protecting peoples
and restrict the means and methods of warfare. It is also known as jus in bello.
- It is the corpus on IL that seeks to make the war more “human” → protect those who are not or are no
longer participating in the war: civilians, wounded soldiers, prisoners of war, all those in need of medical
support etc. But also protect soldiers from warfare methods unproportionate → Main principle of
“humanity”
- It does not regulate whether a state may actually use force, this is governed by a distinct part of
international lay mainly set out in the UN charter → jus ad bellum
Before the Geneva convention there was the Convention for The Amelioration of The Condition of The
Wounded in Armies in the Field (1864) → it defined "the basis on which rest the rules of international law for
the protection of the victims of armed conflicts”.
1949 Geneva Conventions were mainly conceived to regulate international armed conflicts (except for
common article 3). They therefore regulated possible violation of the Conventions as a matter of pertaining to
international cooperation among states (generally, the state of nationality of the victims and the state to whom
the author of the violation belongs).
It is always the state that claims the violation of its rights (of its citizens) against another state to which we
attribute the responsibility of the violation → always a question of relationship between states
The modern revolution of IHRL is that it is not anymore simply a states’ relationship → nowadays, individuals
can directly claim a violation of their own rights. A victim can bring the state (another one of its own) before
the international human rights court.
Rights of Minorities
Individual is taken as a human being, not as a part of a minority etc. It’s the human characteristic which is
always highlighted.
Summing Up
Until WWII Human Rights existed in:
• Domestic systems → first source
• International treaties
o that had a sectoral nature, because they regard specific categories of people, rather than the human
beings in general
o whose majority was motivated by political or economic interests of States, rather than by
humanitarian concerns
o regulated relationships between States, not between States and individuals
2
,Monica Ostoni 2024/2025 IPLE, Unimi
Lecture 2: 4/04: The Origin of IHRL
Traditional International Law → According to established principle of international law, the (a treaty) could
only create obligations for state and not for individuals “according to well established principle of international
law, the Beamtenabkommen (a treaty between Poland and Germany) being an international agreement, cannot,
as such, create direct rights and obligations for private individuals”
Turning point: Nuremberg Trials
➢ Crimes against international law are committed by men, not by abstract entities and only by punishing
individuals who commit such crimes can the provisions of international law be enforced.
➢ In case of international crimes there is a dual responsibility: both the state and individuals that commit the
crime → states are not exempted from responsibility:
- PREVENTION: States have an obligation to prevent the crime (by using all possible methods)
- PROSECUTION: Once the crime is committed, the state shall prosecute the crime and give domestic
court’s jurisdiction over the international crime
The author of the crime is personally responsible towards the international community
LONDON AGREEMENT (Charter of the Nuremberg International Military Tribunal):
Art. 6: the following acts, or any of them, are crimes coming within the jurisdiction of the tribunal for which
there shall be individual responsibility:
a. Crimes against peace
b. War Crimes: crimes that are violations of international humanitarian law (laws and customs of war) →
serious violations of some important rules of IHL
c. Crimes against humanity → inhumane acts committed against any civilian populations
▪ Real novelty of this agreement is this last typology of crimes: before or during the war crimes
committed against the own population of the state were not considered as crimes under international
law → other states were not allowed to interfere. Here, for the first time, states realized that even a
developed state as Germany was able to commit the most serious crime of international human rights
law against its own population (Jewish deportation).
Duty bearers and rights-holders
Traditional international law After WWII
Right holders (States) → claim the rights of their Right holders (Individuals) → claim their rights
nationals from duty bearers from duty bearers
Duty Bearers (States) → undertakes obligations Duty Bearers (States) → fulfil a responsibility
towards other states towards rights holders (individuals)
The role of individuals in international law:
- Individuals are personally responsible for the commission of international crimes
- Individuals are entitled to rights provided by international law
They have a limited subjectivity under international law
UNITED NATIONS ANS HUMAN RIGHTS PROTECTION
The first instrument that included provisions about human rights was the UN CHARTER → main purpose of
the creation of the UN was to maintain peace → it was essential to protect fundamental human rights in an
international legal institution:
- Art. 1: the purpose of the UN is: achieving international cooperation in promoting and encouraging
respect for HR and for fundamental freedoms for all without distinction as to race, sex, language or
religion
3
, Monica Ostoni 2024/2025 IPLE, Unimi
- Art. 55 (c): the UN shall promote: universal respect for, and observance of, human right and fundamental
freedoms for all without distinction as to race, sex, language or religion
- Art. 56: All Members pledge themselves to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55.
DEVELOPMENT OF HUMAN RIGHTS:
Charter of UN (1945)
→ Universal Declaration of Human Rights (UDHR, 1948, not
mandatory)
➢ international covenant on civil and political rights (ICCPR,
1966, mandatory) &
➢ international covenant on economic, social and cultural
rights (ICESCR, 1966, mandatory)
Universal Declaration of Human Rights (1948)
Developed by a working group chaired by Eleanor Roosevelt (she was very active in the protection of human
rights). She chaired very well the group and in three years she presented to the General Assembly the text that
the UN approved. It is still a milestone → first time that under IL a legislation established human rights for all
human beings.
Being a declaration of principles, it is not mandatory. It was approved by a vote of states within the general
assembly (the most democratic body of the UN) → it provides the practice of states (customary IL) which is
made up by the behavior of states
• Preamble: a common standard of achievement for all peoples and all nations, to the end that every
individual and every organ and society, keeping this Declaration constantly in mind, shall strive by
teaching and education to promote respect for these rights and freedoms and by progressive measures
and observance, both among the people of Member States themselves and among the peoples of
territories under their jurisdiction.
• Art. 1: all human beings are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood.
STRUCTURE
First part is devoted to civil and political rights (life, liberty, slavery, torture, non-discrimination etc.): negative
obligations (state is required to abstain from doing something)
Second part (starting from article 22) is devoted to social and economic rights: positive obligations (state has
to actively take measures)
Human Rights Under Contemporary International Law
▪ HUMAN RIGHTS are the rights that all people have by virtue of being human beings.
▪ HUMAN RIGHTS are derived from the inherent dignity of the human person and are defined
internationally, nationally and locally by various law-making bodies.
Five Categories of Human Rights:
a. Civil → the right to be treated as an equal to anyone else in society
b. Political → the right to vote, to freedom of speech and to obtain information
c. Economic → the right to participate in an economy that benefits all and to desirable work
d. Social → the right to education, health care, food, clothing, shelter and social security
e. Cultural → the right to freedom of religion, and to speak the language, and to practice the culture of
one’s choice
4
