International Human Rights Law is the law that protects the rights of individuals across the globe. When it stems from customary international law it gains a globally binding effect – with the exception of persistent objectors – creating fundamental human rights that are applicable to almost all individuals.
International Humanitarian Law is the law that gives the actions of the State in armed conflict. It aims to establish a minimum standard of behavior that all States must adhere to.
The two bodies of law have the commonality of protection of rights of men and the difference of applicability. In this article, we shall analyze these similarities and differences to comprehensively understand the interplay of the two laws.
Article 2(1) of the UN Charter establishes that the organization is based on the principle of sovereign equality. International law is also formed on this basis and aims to protect State Sovereignty. However, in the larger interest, it is necessary for States to mutually draw certain guidelines which States must follow. These guidelines emerge in different ways in relation to different aspects of the law.
With respect to International Human Rights and Humanitarian Laws, these have been mostly through treaty laws and customary international law.
A Treaty is an international agreement between two or more States which is binding upon them. Treaties create codified international obligations, the violations of which entitles other interested parties in remedies. They are fruits of compromise between States and based primarily on the principles of reciprocity.
International Human Rights and Humanitarian Laws are interesting in their treaty aspect. These bodies of international Law form obligations of the State towards individuals and thus are – in a way – unilateral in nature. Treaties of this nature do not govern the relations between States but between a State and individuals. In spite of this seemingly unilateral nature of the treaties, treaties in International Human Rights as well as International Humanitarian Treaties come into force only upon the ratification by many countries. Further, violations of these laws can be brought to International Courts by other State parties as well as individuals. This shows that these laws set down principles which affect the International Community as a whole.
There are many treaties that govern International Human Rights such as ICCPR and ICESCR which are jointly regarded as the most widely accepted codification of Human Rights Law. The concept of protection of Human Rights has been a part of Domestic Laws for a long time, however, these rights were incorporated into International Obligations only in the late 20th century along with the formation of the UN. The UN Charter (1945) and the Universal Declaration of Human Rights (1948) were amongst the first codifications of Human Rights obligations in International Law.
International Humanitarian Law, on the other hand, originated much earlier in the 19th century. The conceptualization of limiting the extent of damage a State may bring upon individuals in the course of the war and armed conflict.
A custom is formed by the congregation of State Practice and Opinio Juris. The state practice must be widespread, representative, frequent and uniform and accompanied by a belief of the States that this practice is a result of international obligations not to act otherwise.
Human Rights and Humanitarian Law have been considered to be deeply embedded into customary International Law since these rules have embodied by the legislations and judicial decisions of many countries of the world. However, there exists a difference in their formation. In the case of Humanitarian Law, State Practice accompanied by Opinio Juris came to be born by virtue of the States’ relations with one and another and out of respect and reciprocity. With the development of international standards of humanitarian behavior of a State, the custom of Humanitarian Law matured even in states not a party to Humanitarian Treaties. However, in the case of Human Rights Law, the State Practice has been derived from the unilateral relationships of the State and individuals. Internal State Practice is the decisive element of the ripening of Customary International Human Rights Law.
Laws create rights and duties upon the bodies bound by it and International Law is no different. Both International Human Rights and International Humanitarian Laws are the interaction of rights of individuals and the duties of the State to protect these rights.
The notion that individuals could possess rights by the direct action on international law was born through the creation of Human Rights and Humanitarian Laws and has been recognized by the PCIJ in the case of the Jurisdiction of the Courts of Danzig.
When one considers the rights created by International Human Rights in comparison to Humanitarian Law, the most pertinent difference is that Human Rights Law grants positive rights to the individual but humanitarian law protects their interests. The ICCPR and ICESCR create a duty on a State not only to refrain from violating these rights but also to create and enforce laws and legislations which protect these rights and prevent third parties from violating them. Thus Human Rights Law creates positive and negative obligations on the State. Humanitarian Law, however, is only a protective mechanism of fundamental humanitarianism. Being born out of the need for minimum standards during armed conflict, Humanitarian Law protects these minimum standards and lays down limits to the extremities of State action. Unlike Human Rights Law, Humanitarian Law does not prescribe a positive duty upon a State.
This difference is further reflected in the capacity of individuals to enforce the rights granted to them. When the party whose right has been violated cannot enforce this right, there is a dissociation between the right and the enforcement mechanism. This dissociation leads to the conceptual problem of the existence of the right itself. This conceptual issue was resolved in the case of Peter Pazmany University v. Chechoslovakia, wherein the Permanent Court of International Justice (replaced later by the ICJ) noted that the “the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself.” This interpretation, however, has been increasingly undermined with the creation of regional and global bodies capable of hearing communications and cases where individuals are parties.
The most pertinent question when it comes to the dualism of Human Rights and Humanitarian Laws is with respect to their conjoint applicability. Article 4 of the ICCPR provides situations in which a State can derogate from the Human Rights set down by it and such situations – according to General Comment No. 29 – includes a situation of armed conflict. In contrast, the application of Humanitarian Law can only be raised in the situation of armed conflict.
It is generally accepted that while both Human Rights and Humanitarian Law share the common goal of protecting the life and dignity of individuals, their applications are different. Human Rights Law is the lex generalis and is deemed to apply at all times while Humanitarian Law is the lex specialis, applicable only in armed conflict. However, it is important for us to consider the interplay between these two bodies of law.
International Humanitarian Law is the law that protects Human Rights in times of armed conflict. The two laws interact on this plane. Humanitarianism is the procedural protection of Human Rights. Thus it is pertinent that they be read together. For example, International Humanitarian Law, read with the Human Rights for detainees creates State obligations towards prisoners of war.
Further, Human Rights are not completely moot in the event of armed conflict. Certain non-derrogable Human Rights can not be deviated from in the event of armed conflict. An example of this is the Right to Life. When we consider this notion in light of the philosophy of Humanitarian Law, we come to an interesting conclusion. International Humanitarian aims to protect certain minimum standards of behavior of the States during armed conflict. These minimum standards are to protect the life and dignity of the participants and non-participants in the armed conflict. This life and dignity are concurrently protected by non-derrogable Human Rights. This is one of the major areas of the interplay of the bodies of law.
International Human Rights Law and Humanitarian Law are deeply intertwined in their aims and application. We see that they have differences in their Formation and casting of rights and duties but on the whole, are meant to be read together.
This article raises an interesting question on the scope of expansion of humanitarian law into human rights law in its application and effect.