• Jonathan McCully

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

These regional inter-governmental organisations have made much more headway towards establishing treaties that protect people’s data from the distinct harms that could be posed by automated systems and new technologies. The Council of Europe has drawn up a treaty that seeks to strengthen data protection in the context of automatic processing of personal information. The treaty is called the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data or Convention 108. This was the first, and remains the only, international treaty on data protection. It requires, among other things, that personal data that is processed by automated systems be obtained fairly and lawfully. It also forbids the processing of sensitive personal data, such as race, political opinions, health, religion, sexual orientation or criminal history, without proper legal safeguards.


Convention 108 has been ratified by every member state of the Council of Europe. A number of non-Council of Europe States have also become party to Convention 108, such as Argentina, Mauritius, Mexico, Morocco, Senegal, Tunisia and Uruguay. There has been a campaign for the United States of America and the United Nations to ratify or adopt Convention 108, and to make it a “global treaty.”


One of the obstacles to the creation of binding international treaties is that there is usually a threshold on the number of countries that have to ratify the treaty before it can have binding legal force. The African Union has drawn up a data protection treaty, the African Union Convention on Cyber Security and Personal Data Protection, but it has only been adopted by eight states out of the fifteen ratifications needed for it to come into force.


The Council of Europe has also taken steps to modernise Convention 108, with the inclusion of stronger protections against automated decision-making systems. This is referred to as Convention 108+. It has been ratified by ten member states of the Council of Europe, well below the number required for it to come into force.


Even though there is a lack of specific global treaties that deal with the human rights implications of “intelligent” machines and other new technologies specifically, it has not stopped the enforcement of the technologically neutral rights contained in international treaties in cases concerning such systems.


For example, the European Convention on Human Rights has been successfully relied on to challenge the use of live automated facial recognition technology and a risk scoring model that was used to identify those at risk of committing welfare fraud.


Constitutions


This is (usually) a written document that sets out the basic structure of a state, the major state institutions (such as the government, legislator and the courts), and the principles governing their relations with each other and with citizens. It is, therefore, often treated as the fundamental and supreme law of a country.


Constitutions across the globe include human (or constitutional) rights that can be enforced against the state and state bodies, such as the rights to privacy, freedom of expression, a fair trial and freedom from discrimination.


Some constitutional rights may not be explicitly referred to as “human rights,” but can play a similar function to the rights set out under international treaties. For example, in the US, constitutional rights to due process can offer similar protections to the right to a fair trial. As set out in two case studies, due process rights have been relied on to challenge the use of risk scoring algorithms in the criminal justice system and the use of student performance scoring algorithms used to fire teachers in public education contexts.


Constitutions may directly incorporate international treaties into the domestic legal framework of a country, allowing individuals to enforce their international human rights against state bodies. For example, the Constitution of Kenya states that “the general rules of international law shall form part of the law of Kenya.”


Constitutions may require that domestic laws be interpreted in conformity with international treaties. For example, the South African Constitution states that courts and tribunals must consider international law when interpreting constitutional rights.


However, other countries require that, before citizens can enforce their rights under international treaties before the courts, domestic law has to be passed to make international law directly applicable.


Legislation or Code


These are the laws that are passed (or enacted) by the legislature. The legislature being the deliberative assembly with the authority to make laws in a given country.


Legislation sets out legal norms that can apply in a variety of contexts (see above on criminal, civil and public law). Some countries have legislation that incorporates international human rights law into the domestic legal context, permitting these rights to be enforced before the courts (e.g. the Human Rights Act in the UK). Legislation may elaborate, specify or complement further what has been set out in international human rights treaties (e.g. domestic data protection legislation has done this).


Some legislation may narrowly apply to the design, development or use of machine learning and automated decision-making technologies specifically. For example, Canada has passed a law that specifically regulates government use of automated systems in circumstances where public services are being provided and where recommendations or decisions are being made about a person to a government department.


A legal code is a type of legislation that is more prevalent in civil law jurisdictions. It attempts to exhaustively and comprehensively set out a written statement of laws that cover the entire legal system or a particular area of law (e.g. the French Code Civil).


Legislation can also be further categorised into primary and secondary legislation. Primary legislation is the main set of laws passed by the legislature. Secondary legislation refers to laws that are made by lesser bodies that are granted powers to issue delegated legislation.

Secondary legislation or policies can usually be challenged for being outside the powers authorised under primary legislation. This was done successfully in a case before the Constitutional Tribunal in Poland, for example, where the fact that the Minister of Labour was able to put in place a process of algorithmically profiling unemployed individuals was beyond the powers that could be delegated to such an individual under primary law.


The constitution, primary legislation and secondary legislation function in a hierarchy, which determines how they rank in authority. The structure of this hierarchy can vary from country to country. However, it can be possible to challenge legislation for its failure to comply with the constitution and, in some countries, international human rights law.


As a result, a piece of legislation that requires internet platforms to adopt automated content moderation technologies or that regulates the circumstances under which facial recognition technology can be used, could still be challenged before the courts for failing to sufficiently protect the rights to freedom of expression, privacy or freedom from discrimination.


Legislation can be amended or repealed by later legislation and may even be overturned by the courts. Therefore, when researching domestic legislation, it is always worth doing some further digging to make sure it is still in force and unaffected by later developments.


Case Law


Numerous legal systems recognise the binding authority of court decisions as law. The body of law made up of case law is usually referred to as judicial precedent.


Under these systems, courts will be bound to follow previously decided cases from courts of superior authority when they are presented with a case of sufficient similarity to the facts of previous cases.


When deciding a case, courts may consider previous case law in a number of ways:

  • Approve: the court states that the decision of an inferior court was correctly decided.

  • Apply: the court applies the reasoning of a previous decision to the case before it.

  • Follow: the court is bound to follow the reasoning of a superior court where the facts are substantially the same.

  • Distinguish: the court does not follow an otherwise binding decision because there is a relevant difference in facts.

  • Disapprove: the court might state that the decision of a lower court in a different case was wrongly decided.

  • Doubt: the court might give reasons why a court decision in another matter may have been wrongly decided.

  • Not Follow: the court might refuse to follow the decision of a court of equal status even though the facts of the case are substantially the same.

  • Overrule: the court may expressly overrule the decision of an inferior court in another case.

As with legislation, case law can evolve over time. For example, case law may be superseded by legislation. Court decisions can also be appealed to higher courts. This might result in a higher court approving or applying a lower court decision, or it could result in the lower decision being overruled (meaning it will no longer be good law). This means it is crucial to make sure that a court decision has not been rendered invalid or of limited value by other case law or legislation before it is relied on to take a case to court.


The reasoning of a court decision can, itself, be separated into different levels of authoritative legal weight. You can find out more on this here.


Case law will only be binding within a specific country or legal system. Nonetheless, case law from courts in other countries on similar or the same matter can be of persuasive value to some other courts. For example, a court in France might take account of how the courts in Germany dealt with a similar legal question.



Not (Really) Law