Human rights

The most important category of public international law rules on good governance are human rights, because they regulate the exercise of power within a state. On the universal level, the central sources are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Alongside these treaties, which guarantee human rights extensively (with the notable exception of the right to property), human rights under customary international law continue to exist and thus build the minimum human rights obligations worldwide—a minimum standard of good governance.

The character of human rights as a yardstick for internal governance is illustrated by the change of focus in the important policy field of development, where a “rights-based approach” is now commonly accepted.3 It requires states, both in their internal actions for their own development and in any development cooperation, to devise an agenda and strategies with a view to realizing human rights. Human rights thus set the priorities for development; at the same time, development itself is understood as a process for the realization of all human rights (Rudolf 2008). Under the internal dimension of the right to development, every state is obliged to ensure development to its population.4 Thus, a state’s governance is measured against the realization of human rights. Since all human rights are “universal, indivisible, and interdependent,”5 there is no hierarchy between civil and political rights (the “first generation” of human rights), and economic, social, and cultural rights (“second generation” rights). Nevertheless, some human rights enjoy a higher status under public international law because they embody fundamental values of the international community. Consequently, the realization of these rights is a matter of priority.

Some human rights are considered part of ius cogens. Hence, states cannot free themselves of these obligations. It is generally recognized that the prohibition of torture and of slavery as well as the prohibition of genocide and of racial discrimination are such peremptory norms. Arguably, a prohibition of arbitrariness with respect to survival and basic needs also amounts to ius cogens.6 Thus, nobody may be deprived of his or her life or liberty arbitrarily. This follows from common article 3 of the Geneva Conventions: if these rights must be respected in an armed conflict under all circumstances, they apply a fortiori in peacetime. The same holds true for fundamental principles of fair trial.7 For the same reason, the equal value of all human beings and the right to be recognized as a person under the law constitute peremptory rules. Consequently, no one may be denied access to means of survival only because of his or her gender or because he or she belongs to a particular (ethnic, social, or other) group.

Another category of higher-ranking human rights are nonderogable rights, that is, rights that cannot be suspended in times of emergency. In addition to the ius cogens rights, article 4.2 of the ICCPR considers as nonderogable the principle of legality in the field of criminal law (nullum crimen, nulla poena sine lege), and the freedom of thought, conscience, and religion. The Human Rights Committee adds the right of persons deprived of their liberty to be treated with respect for the inherent dignity of the human person; the prohibition against taking hostages, abductions, and unacknowledged detentions; the prohibition of forced displacement of populations; and the obligation to provide for effective remedies against violations of human rights.8 Ius cogens and nonderogable human rights impose obligations on states that must be respected under all circumstances.9

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