Journal of Legal Research

Journal of Legal Research

Investigating the Concept of “Progressive Development of Law” In the System of International Human Rights Law and Comparing It with the General International Law

Document Type : Original Article

Author
Amirhossein Mohebali
PhD in Public International Law, Faculty of Law and Political Sciences, Allameh Tabataba'i University, Tehran, Iran.
10.48300/jlr.2022.310271.1810
Abstract
International human rights law has features distinguishing it from other disciplines of public international law. These special features have caused some common words to undergo a conceptual transformation and evoke a different meaning from what they have in the field of international law. One of these terms is "progressive development of rights”. The declaratory nature of human rights rules (in all forms of rules, including custom and treaty), has led to the fact that in the subject area of international human rights law, which is all about recognition, progressive development creates the meaning of promotion of status and promotion of human rights. While in international law, progressive development brings to mind the concept of establishment and creation of rights.
Examining keywords such as "progressive development of rights" and identifying and explaining their exact meaning in the subject area will have the benefit that human rights obligators, who are the governments in most cases, understand the nature and scope of their obligations correctly and implement them in a timely manner and in accordance with the protectionist goals of human rights.
By explaining the characteristics of international law and international human rights law, The present study works on the semantic difference of the term "progressive development of rights" in international human rights law and in the field of general international law, and the alternatives to progressive development in international human rights law and what they mean.
Examining keywords such as "progressive development of rights" and identifying and explaining their exact meaning in the subject area will have the benefit that human rights obligators, who are the governments in most cases, understand the nature and scope of their obligations correctly and implement them in a timely manner and in accordance with the protectionist goals of human rights.
By explaining the characteristics of international law and international human rights law, The present study works on the semantic difference of the term "progressive development of rights" in international human rights law and in the field of general international law, and the alternatives to progressive development in international human rights law and what they mean.
Keywords
General International law
International Human Rights Law
Progressive Development
Protection
Promotion

  • Books: (in Persian)

    • Ziaei Bigdeli, Mohammad Reza, Public International Law, 40th Edition, Tehran: Ganj-e-Danesh, 2011.
    • Cassese, Antonio, International Law, translated by Hossein Sharifi Tarazkoohi, Tehran: Mizan, 2006.
    • Zarshanshan, Shahram, Formation and Identification of Customary International Law, Tehran: Shahr-e-Danesh Institute, 2014, Second Edition.
    • Zamani, Seyed Ghasem, Discourses in International Human Rights law, Tehran: Khorsandi Publications, 2021, first edition.
    • Shahbazi, Aramesh, the International Law System of Unity while Multiplicity, Tehran: Shahr-e-Danesh Institute, Tehran, 2010.
    • Joseph, Sarah, Schultz, Jenny, Kasen, Melissa, International Covenant on Civil and Political Rights, translated and researched by Dr. Seyed Ghasem Zamani et al., Shahr-e-Danesh Institute, Volume I, 2016.
    • Joseph, Sarah, Schultz, Jenny, Kessen, Melissa, International Covenant on Civil and Political Rights, translated and researched by Dr. Seyed Ghasem Zamani et al., Shahr-e-Danesh Institute, Volume II, 2016.
    • Ebrahim Gol, Alireza, International Responsibility of States, Tehran: Shahr-e-Danesh Institute, 10th edition, 2018.
    • Ghorbannia, Nasser, In Search of Right and Justice, Tehran: Majd, 2015, first edition.
    • Sharifi Tarazkoohi, Hossein, Human Rights Theories and Procedures, Tehran: Mizan, winter 2016, First Edition.
    • Qari Seyed Fatemi, Seyed Mohammad, Human Rights in the Contemporary World, Tehran: Negah Moaser, 2019, Volume One, Sixth Edition.
    • Qari Seyed Fatemi, Seyed Mohammad, Human Rights in the Contemporary World, Tehran: Shahr-e-Danesh Institute, Second Volume, Third Edition, 2014.
    • Wallace, Rebecca, International Law, Translation and Research by Seyed Ghasem Zamani and Mahnaz Bahramloo, Tehran: Shahr-e-Danesh Institute, Fifth Edition, 2015.
    • Movahed, Mohammad Ali, In the Air of Right and Justice, Tehran: Karnameh, 2002, first edition.
    • Askari, Pouria, The Reservation right on Human Rights Treaties: Shahr-e-Danesh Institute, 2017, Second Edition.
    • Sarai, Zohreh, Mohebeli, Amir Hossein, human rights Interpretation in the view of UN Human Rights Committee, Tehran: Shahr-e-Danesh Studies Institute, 2018.
    • Abdolmaleki, Mehdi, Nouri, Valiollah, Mahmoudi, Amir, Zahmatkesh, Majid, The Future of International Law Realization of the utopia, Tehran: Shahr-e-Danesh Institute for Legal Studies and Research, Volume 2, Year 1400.
    • Mohebeli, Amirhossein, Moheimani, Maryam, Sarai, Zohreh, child rights Interpretation in the view of UN Child Rights Committee, Tehran: Shahr-e-Danesh Institute, 2019.
    • Hosseini Akbarnejad, Haleh, The Nature of Human Rights treaties in the International System, Tehran: Shahr-e-Danesh Institute, 2016.
    • Subedi, Surya, UN Human Rights System from Ideas to action, translation and research: Dr. Seyed Ghasem Zamani and Amir Hossein Mohebeli, Tehran: Majd, 2019.

     

    Articles: (in Persian)

    • Falsafi, Hedayatullah, "codification and promotion of human rights in the international community", Legal Research, 16 and 17, Fall 1995.
    • Sharifi Tarazkoohi, Hossein, Fatehpour, Fatemeh, "Requirements to counter terrorism in the light of the process of humanization of international law", Journal of Legal Studies, Shiraz University, 9, 2017.
    • Jose Jill, Amparousan, Beigzadeh, Ebrahim, "International Responsibility of States for Human Rights Violations", Legal Research, 29 and 30, 2000.
    • Zamani, Seyed Ghasem, Challenges and Initiatives of the General Assembly in the Process of Codification and Development of International Law, University of Tehran, Proceedings of the Conference on the Role of the UN General Assembly in the Gradual Development of International Law 2010.
    • Askari, Pouria, Saeedi, Niloufar, "NGOs and Monitoring the Execution of Human Rights with Emphasis on Amnesty International", Public Law Research Quarterly, 53, 2016.
    • Qari Seyed Fatemi, Seyed Mohammad, Different Space of Human Rights Treaties, Journal of the Office of International Legal Services of the Islamic Republic of Iran, 28, 2003.
    • Zamani, Seyed Ghasem, Global Monitoring of Human Rights Enforcement: From the UN Human Rights Commission to the Human Rights Council, Legal Research, 2006.
    • Hosseini Akbarnejad, Haleh, Houria Hosseini Akbarnejad, "A look at the practices of international institutions in the normalization and expansion of concepts in the field of women", Quarterly Journal of Women and Family Social Cultural Council, 76, 2017.
    • Mousavi, Seyyed Fazlullah, is general international law the only customary law? Legal Journal of the Office of Legal and International Services of the President, 18 and 19, 1994.
    • Mahmoudi Kurdi, Zahra, The Nature of General Legal Principles and Its Functions in International Law, Presidential International Legal Journal, Volume 35, Number 58, 2018.
    • Latifian, Mohammad Hossein, Advisory Opinion of the International Court of Justice in the Chagos Case in the Mirror of the Right to Self-Determination, Forum of the Iranian-Iranian Studies Association, 2016.

    Books

    - Ackerly, A.B. Universal Human Rights in a World of Difference. Cambridge: Cambridge University Press, 2008.

    - Alston, P. and F. Megret (eds). The United Nations and Human Rights: A Critical Appraisal, 2nd ed. Oxford: Oxford University Press, 2013.

    - Alston, P. and R. Goodman. International Human Rights. Oxford: Oxford University Press, 2012.

    - Alston, Philip. “The Historical Origins of General Comments’ in Human Rights Law”. in Laurence Boisson De Charzournes and Vera Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality. Brill, Nijhoff, 2001. https://doi.org/10.1163/9789004479012

    - Amnesty International. Amnesty International Handbook, London: AI publications, 2002.

    - Baghel, I. and S.N. Yadav. Human Rights in the 21st Century. Jnanada Prakashan, 2009.

    - Bantekas, I. and L. Oette. International Human Rights Law and Practice. Cambridge: Cambridge University Press, 2013.

    - Buchanan, R. and P. Zumbansen. Law in Transition: Human Rights, Development and Transitional Justice. Hart Publishing, 2014.

    - Clapham, Andrew. Human Rights: A Very Short Introduction. Oxford: Oxford University Press, 2007.

    - Condorelli, Antonio and Joseph H. H. Weiler (eds). Change and Stability in International Law- Making. New York; Berlin: W. de Gruyter, 1988.

    - Ishay, Micheline R. The History of Human Rights: From Ancient Times to the Globalization Era. University of California Press, 2004. https://www.jstor.org/stable/10.1525/j.ctv1xxscm

    - Janusz, Symonides. Human Rights: Concept and Standards. Milton Park, Abingdon: Routledge, 2000.

    - Justice Antonin Scalia. “Justice Scalia’s Tribute and Thoughts on Human Rights” in Jo Carby-Hall (ed). Essays on Human Rights: A Celebration of the Life of Dr Janusz Kochanowski. Warsaw: Ius et Lex Foundation, 2014.

    - Kamminga, M. T. Inter-State Accountability for Violations of Human Rights, Philadelphia. University of Pennsylvania Press, 1992.

    - Karol, Wolfke. “Can Codification of International Law be Harmful?”. In Jerzy Makarczyk (ed), Essays in International Law in Honour of Judge Manfred Lachs, The Hague: Martinus Nijhoff, 1984.

    - OHCHR and the Inter-Parliamentary Union (IPU). Human Rights: Handbook for Parliamentarians N◦26. Inter-Parliamentary Union: the United Nations (Office of the High Commissioner for Human Rights, 2016.

    - OHCHR. A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, Geneva: Human Rights Publications 1995.

    - The United Nations and Human Rights: A Critical Appraisal, 2nd ed. Oxford: Oxford University Press, 2013.

    - Ulfstein, Geir. Law-Making by Human Rights Treaty Bodies. Routledge, 2014.

    Arcticles

    - Dembour, Marie-Bénédicte. “What Are Human Rights? Four Schools of Thought”. Human Rights Quarterly, 32, 1(2010), 1-20. Available at https://www.jstor.org/stable/40390000

    - Kumar, C. Raj. “National Human Rights Institutions: Good Governance Perspectives on Institutionalization of Human Rights”. American University International Law Review, 19, 2(2003), 259-300. Available at https://digitalcommons.wcl.american.edu/auilr/vol19/iss2/2/

    - Pronto, Arnold N. “Codification and Progressive Development of International Law: A Legislative History of Article 13(1) (a) of the Charter of the United Nations”, FIU Law Review, 13, 6(2019), 1101-1123. Available at SSRN: https://ssrn.com/abstract=3497168

    - Craven, Matthew. “Legal Differentiation and the Concept of the Human Rights Treaty in International Law”. European Journal of International Law, 11, 3(2000), 489-519. https://doi.org/10.1093/ejil/11.3.489

    - Dinstein, Yoram. “The Erga Omnes Applicability of Human Rights”. Archiv Des Völkerrechts, 30, 1(1992), 16-21.  https://www.jstor.org/stable/40798679

    - Ghandhi, Sandy. “Human Rights and the International Court of Justice the Ahmadou Sadio Diallo Case”. Human Rights Law Review, 11, 3(2011), 527–555. https://doi.org/10.1093/hrlr/ngr023

    - Crook, John R. “the International Court of Justice and Human Rights”, Northwestern Journal of Human Rights, 1, 1(2004), 2-8. https://scholarlycommons.law.northwestern.edu/njihr/vol1/iss1/2

    - Lord, Janet E. “Mirror, Mirror on the Wall: Voice Accountability and NGOs in Human Rights Standard Setting”. Journal of Diplomacy and International Relations, 5, 2(2004), 93-110. https://scholarship.shu.edu/diplo_ir/vol5/iss2/9

    - Bird, Annie. “Third State Responsibility for Human Rights Violations”. European Journal of International Law, 21, 4(2010), 883-900, https://doi.org/10.1093/ejil/chq066

    - Milner, Helen. “The Assumption of Anarchy in International Relations Theory: A Critique”. Review of International Studies, 17, 1(1991), 67-85. doi:10.1017/S026021050011232X

    Documents

    - Committee On Enforced Disappearances. “Rules of procedure and working methods”, Accessed September 8, 2021, Available at: http://www.ohchr.org/EN/HRBodies/CED/Pages/WorkingMethods.aspx.

    - De Frouville, Olivier. “ Strengthening the Rule of Law: The Right to an Effective Remedy for Victims of Human Rights Violations”. Conference in Vienna, 27-28 June 2013.

    - Declaration on the Granting of Independence to Colonial Countries and Peoples, Accessed September 28, 2021.

    - Draft revised General Comment No. 10 (2007), Accessed September 28, 2021. Available at: https://www.ohchr.org/EN/HRBodies/CRC/Pages/DraftGC10.aspx

    - International Covenant on Civil and Political Rights, Accessed September 20, 2021.

    - International Covenant on Economic, Social and Cultural Rights, Accessed September 20, 2021.

    - International Service for Human Rights I (SHR). A Simple Guide to the UN Treaty Bodies, 2015, Accessed July 5, 2021. Available at: https://www.ishr.ch/sites/default/files/documents/ishr_simpleguide_eng_final_final_dec15.pdf

    - Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Accessed September 20, 2021.

    - Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Accessed September 20, 2021.

    - Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Accessed September 20, 2021

    - Pillay, Navanethem. Strengthening the United Nations human rights treaty body system: A report by the United Nations High Commissioner for Human Rights. UN Office of the High Commissioner for Human Rights, 2012. Accessed September 8, 2021.Available at: http//www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf.

    - Statute of the International Law Commission 1947, Accessed October 2, 2021.

    - Treaty of Westphalia Accessed September 28, 2021.

    - UN Treaty Body Database, Accessed July 6, 2021.

    - Universal Declaration of Human Rights Accessed July 5, 2021.

Journal of Legal Research
Volume 23, Issue 58
Summer 2024
Pages 117-152