What Is Human Rights Law?


In simple terms, a law is a rule that regulates what individuals or entities can or cannot do in society.


Laws give rise to “rights” and “obligations.”


A “right” is a legal principle that establishes entitlements (something that is owed to a person) and freedoms (something that a person is allowed to do freely).


An “obligation” is a legal requirement or duty that an individual or entity has a responsibility to carry out or comply with.


These “rights” and “obligations” can arise in a variety of contexts, from employment to business, and from policing to healthcare, and a variety of areas of law regulate conduct across these different domains.


When bringing a case to court, an individual will usually be claiming that their right has been breached by the other party or that the other party has failed to discharge an obligation in relation to the them.



Types of law


The specific rights or obligations that might arise will vary depending on the area of law that applies in a given context.


At supra-national level, the main area of law is International Law. This is the law that governs the rules of relations between countries or states. International law can create obligations for states in a range of areas, including human rights, environment, conflict and international crimes (it is based on international treaties, read more below).


At domestic or country level, the main areas of law are as follows:

  • Criminal Law: this is law that establishes when an individual, and in some countries a company, will be considered to have committed a crime. In most countries, it will be the responsibility of the police or prosecutors to investigate and bring criminal law cases to court;

  • Civil Law: this is law that governs relations between private parties (e.g. individuals and companies). For example, civil law can establish rules for remedying a situation where a person has been wronged by another person (e.g. personal injury, injury to property, harassment, defamation). It also regulates the rights and obligations of parties to a legally binding agreement (i.e. contract law). It can also set out rules for solving disputes around employment, family and property;

  • Public Law: this is an area of law that governs the relationship between the state (i.e. government) and individuals. These laws aim at ensuring that public authorities and government bodies act rationally, reasonably, fairly and lawfully when they exercise their authority. Furthermore, it ensures that public bodies do not act outside their official powers.


What is human rights law?


Human rights law is an area of law that establishes a set of basic principles and norms that are aimed at ensuring the dignity, freedom, and equality of all human beings.


Many of these principles and norms are set out under International Law, and they have the effect of establishing legally binding obligations on countries to ensure that human rights, a number of which are considered on our Spotting There Is A Problem page, are fully respected, promoted and protected within their societies.


The obligations that are owed by countries can be further broken down into:

  • Negative Obligations: obligations to refrain from doing something that would violate human rights. For example, refrain from censoring people; and

  • Positive Obligations: obligations to do something to ensure respect and protection of human rights. For example, an obligation to stop someone from violating the human rights of another person.

As international human rights law only formally applies between states, there are limited opportunities for individuals to formally enforce these laws before their country’s courts.


However, since international human rights law gives rise to positive obligations, countries that are bound by this law must ensure the laws and regulations in their own country (see constitution, legislation and case law below), and how they are applied by the courts, sufficiently protect and respect human rights.


This means that countries, in trying to discharge their positive obligation, might put in place human rights-type laws that individuals can then use to take cases against other individuals or entities.


At country level, human rights law will be most explicitly recognised as a type of public law and will, therefore, only be enforceable against the government or state entities (if at all!).


However, domestic law regulating relations between people (i.e. civil law) can also give effect to human rights principles by giving individuals access to a remedy where their human rights have been harmed by another person or private company (e.g. data protection law, equality or non-discrimination laws). Some acts may also be criminalised in order to protect and promote the rights of others (e.g. the right to life is protected through the crime of murder).


At the same time, domestic law itself may violate international human rights law and may be challengeable before the courts on that basis (e.g. mass surveillance laws might be overturned because they violate the right to privacy).


Bringing human rights litigation involves an often-painstaking analysis of what the law requires in a given scenario and an assessment of whether and how it is enforceable in a particular case. This will require legal research, as well as legal advice.


Nonetheless, this article will briefly sketch out the starting point for figuring out where to look for sources of human rights law that may be relied on before the courts.



Primary Sources of Law


Despite the proliferation of principles, ethical codes and policy documents on artificial intelligence, these documents are not legally binding and cannot be enforced before the courts as law.


To establish what principles can be enforced before the courts, you need to first identify what is set out in primary sources of law. These are the documents that state what the law actually is. They consist of the following:


· Treaties

· Constitutions

· Legislation or Code

· Case Law


Treaties


These are international legal agreements that are binding on those that sign and ratify (i.e. the act of giving formal consent to) them. These agreements are usually signed by states and international organisations, and constitute law between those entities, but they can also be binding on individuals and entities within those states (e.g. their citizens).


International treaties have established a legal framework for International Human Rights Law. However, some international treaties have also created other types of obligations that can have an impact on new technologies and “intelligent” machines. For example, the Vienna Convention on Road Traffic is an international treaty that is aimed at establishing universal norms on road traffic use. It was originally drafted in the 1960s and included a provision that required that every driver shall “at all times” be able to control their vehicle. This was considered to have hindered development in autonomous or self-driving cars. In 2016, an amendment came into force permitting the transfer of driving tasks to a vehicle’s automated driving technologies provided these technologies meet vehicle regulations or can be overridden/switched off by the driver.


International treaties on human rights are usually technologically neutral, meaning that rights are protected regardless of the methods or means being used to interfere with them.


Key Global Instruments


The key international human rights legal instruments have been created through the United Nations system, an international organisation founded in 1945 and made up of over 190 countries.


Civil and Political Rights


These are rights aimed at protecting the life, dignity, integrity, liberty and opinion of all people.

  • International Covenant on Civil and Political Rights (ICCPR): this is an international human rights treaty that sets out a number of basic civil and political rights that states are bound to protect, preserve and promote. These include rights such as the right to life and human dignity, equality, freedom of expression and assembly, the right to privacy, the right to a fair trial, and freedom from torture. It has been ratified by over 170 countries across the globe, you can see whether your country has ratified the treaty here.

Economic, Social and Cultural Rights

These are rights aimed at securing the basic social and economic conditions needed to live a life of dignity and freedom.

  • International Covenant on Economic Social and Cultural Rights (ICESCR): this is an international human rights treaty that sets out a number of basic economic, social and cultural rights that states are expected to work towards guaranteeing. These include the right to work, right to health, right to social security and the right to participate in cultural life. It has been ratified by over 170 countries across the globe, you can see whether your country has ratified the treaty here.

Other Relevant Treaties

  • International Convention on the Elimination of Racial Discrimination (ICERD): this is an international treaty that commits members to ending any “distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin with the purpose or effect of impairing the enjoyment on equal footing of human rights.” It has been ratified by over 180 countries across the globe, you can see whether your country has ratified the treaty here.

  • International Convention on the Elimination of Discrimination Against Women (CEDAW): this is an international treaty that commits members to ending any “distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women” of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It has been ratified by nearly 190 countries across the globe, you can see whether your country has ratified the treaty here.

  • Convention on the Rights of the Child (CRC): this is an international treaty that sets out the civil, political, economic, social and cultural rights that all children are entitled to. These include rights such as the right to life, the right to express their views in matters affecting them, the right to privacy and the right to education. It has been ratified by nearly 200 countries across the globe, you can see whether your country has ratified the treaty here.

  • International Convention on the Protection of Migrant Workers (ICMW): this is an international treaty that aims to foster respect for migrants’ human rights and establish basic principles for the protection of migrant workers and their families. It sets out the civil, political, social, economic and cultural rights to be enjoyed by migrant workers and members of their families, including rights to freedom of expression and privacy. It also establishes some more specific rights and obligations, such as the ban on collective expulsion of migrant workers and their families. It has been ratified by over 50 countries across the globe, you can see whether your country has ratified the treaty here.

  • Convention on the Rights of Persons with Disabilities (CRPD): this is an international treaty that sets out the civil, political, economic, social and cultural rights that persons with disabilities are entitled to. It also seeks to promote and protect the human rights of disabled people by eliminating discrimination, ensuring an inclusive education system, and protecting disabled people against exploitation, violence and abuse. It has been ratified by over 180 countries across the globe, you can see whether your country has ratified the treaty here.

Although these treaties establish rights and obligations in a technologically neutral way, and they make no reference to artificial intelligence or automated systems, they are not completely free from references to new technologies.


For example, the Convention on the Rights of the Child encourages states to use new technologies to combat disease and malnutrition, and the International Convention on the Elimination of Discrimination Against Women requires states to review and reform employment equality legislation “in light of scientific and technological knowledge.”


The Convention on the Rights of Persons with Disabilities makes reference to the need for accessibility to new technologies for people with disabilities. It obliges states to foster research and development of, and promote the availability and use of, new technologies, such as mobility aids, assistive technologies and devices, and information and communications technologies. It also requires states to remove obstacles and barriers to persons with disabilities having access, on an equal basis with others, to information and communications technologies and systems.


There is no specific international human rights treaty that deals with human rights in the context of algorithmic technologies. Furthermore, there is no specific global treaty that deals with protecting people’s data and rights in the context of automated decision-making. However, there has been an initiative to transform a regional European treaty on automatic processing of personal data (see below) into a truly “global treaty.”


Key Regional Instruments

Human rights treaties have also been adopted on a regional (Africa, Europe, Americas, Asia and Pacific Islands) basis by inter-governmental organisations. For human rights enforcement, the primary inter-governmental organisations include the African Union, the Council of Europe, the European Union and the Organization of American States.


Like the UN, they have created a number of human rights treaties. Many of these localise the international treaties outlined above. For example:

Civil and Political Rights

Economic, Social and Cultural Rights

Other Regional Human Rights Treaties