Publish date 23-03-2023
From a question of individual states to a patrimony of the international legal system.
The legal framework for the protection of human rights does not originate in international law. It is placed first in the internal legal systems: the matrix is found in the great classical texts of the eighteenth and nineteenth centuries, in the English Bill of Rights of 1689 and then in the American Declarations of 1776 and 1787 and in the French one of 1789 which, according to time, with different formulations and nuances, they have been transposed into our modern constitutions, especially in Western Europe and North America.
These juridical formulations are rooted in a centuries-old European, religious and secular thought, very rich in important contributions. The transition from a level of recognition and protection in state legal systems to an international one took place after the Second World War, when the ), important international instruments for the protection of human rights: from the Universal Declaration of Human Rights of 10 December 1948 to the United Nations Covenants on Human Rights of 16 December 1966; from the Convention of 9 December 1948 on the prevention and punishment of the crime of genocide to the Convention on the elimination of all forms of racial discrimination of 1965; from the 1973 Convention on the Elimination and Punishment of the Crime of Apartheid to the 1979 Convention on the Elimination of All Forms of Discrimination against Women and the 1989 Convention on the Rights of the Child. Thanks to these norms, the issue of human rights has ceased to belong to the sphere of exclusive jurisdiction, of the domestic jurisdiction of the States, to enter a vast and complex legal sphere, made up of interactions between international law and domestic law, of principles and rules of universal scope. The individual entered an international community with a precise legal profile in which he was traditionally a stranger. The legal system of the international community today appears particularly attentive to the guarantee of an effective protection of human rights. However, the road still appears long and arduous.
Since the treaties of Westphalia of 1648, international law has been consolidated as the set of legal rules intended to regulate relations between states, understood as superiorm non recognoscentes entities. This fundamental need justified the progressive formation and consecration of the principle of the obligation to respect domestic jurisdiction, of the prohibition of intervention in the internal affairs of a State: «Man's house is his castle; the wind and the rain can enter it but not the King of England», according to an ancient English formulation.
The horrors of the Second World War, war crimes and crimes against humanity produced a strong reaction from the international community. The constitution of the United Nations and the introduction of the protection of human rights among its purposes have represented the normative foundation for an internationalization of the guarantee of the fundamental rights of the human person. These were then solemnly proclaimed in the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948. The human person came to appear in the limelight of a system which traditionally recognized as subjects and "actors" only the states. These, within the sphere of their domestic jurisdiction, considered the human being a mere object of their normative power. The relationship between the state and individuals was understood as the exclusive responsibility of the organs of the state. In the exercise of its power of dominion over the territory, the State was also the holder of a correlative power of command over individuals, which encountered any limits only in internal regulations. With the Universal Declaration, in an international normative instrument, it is affirmed that all human beings are born free and equal in dignity and rights and that States are bound to recognize and respect them.
However, the Declaration was adopted by the General Assembly, which does not have the power of decision (binding normative act) but only the power of recommendation (non-binding act). Although solemn, of high political and moral value, it remains an instrument without binding effect. The States have therefore adopted multilateral treaties on the matter: the Pacts of 16 December 1966, on civil and political rights and on economic, social and cultural rights. These are legal instruments that bind the states that have ratified them. However, they took this important step without fully accepting all the consequences that this implied, especially in terms of the relationship between the internationalization of the protection of rights and the limitation of the sphere of domestic jurisdiction. In other words, the effective monitoring of respect for human rights remains essentially entrusted to the organs of the States.
By virtue of the general obligation incumbent on States to comply with the precepts of international law, the States themselves must ensure that the persons within their jurisdiction enjoy fundamental rights. But what happens if the State does not guarantee this protection? The remedy remains that of the national courts, which have the function of checking that the State and its organs respect the rules that have been ratified and introduced into the internal legal order.
History shows that not only are states rather reluctant to take steps to ensure this effective protection, but also that they themselves are often directly responsible or instigators of the most serious violations of individual rights. The problem therefore shifts from the level of elaboration of norms at an international level to that of the effective and effective control of their observance.
For an effective protection of human rights, the best possible model is to be considered the one represented by the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), which prepared – within the Council of Europe – an effective judicial mechanism, centered on a European Court of Human Rights, which pronounces judgments binding on States and hears appeals from individuals. It should always be remembered that the task of guaranteeing individuals effective enjoyment of fundamental rights falls essentially to the States. International remedies can only be considered complementary.
75 years after the Universal Declaration, it is still the States that have to be the first to concretely implement the noble principle on which the entire Declaration is based: "All human beings are born free and equal in dignity and rights".
States themselves must ensure that people within their jurisdiction enjoy fundamental rights. But what happens if the State does not guarantee this protection? The remedy remains that of the national courts. However, history shows that states are rather reluctant to take steps to guarantee this protection and that they are often themselves directly responsible for the most serious violations of individual rights
NP Gennaio 2023