Contents

I. Introduction

The Human Rights Centre of the University of Potsdam, which celebrates its 30^th anniversary in 2024¹, and which anniversary is the focus of this short piece, is a child of its time. Prior to 1990, the building where it has been located since 2001, hosted the East German ‘Academy of State and Law of the German Democratic Republic’.² This ‘academy’ functioned as a Marxist-Leninist educational institution for senior employees of the GDR’s State apparatus, administration and diplomatic service.³ It was thus both, an academic institution, a university and an institution for training and further education. But first, and foremost, if not exclusively, it served the interests of the GDR government and its understanding of international law, including human rights law. What is more, said Academy was located a mere 300 meters, if not less, from the wall which separated the GDR from the Western sectors of Berlin, and where people trying to exercise their right enshrined in Art. 12, para. 2 ICCPR to “leave any country, including his own”⁴, which the GDR had ratified in 1973, did run the risk not only to be captured, but likely even be shot. Hence, it was only after the fundamental changes that took place from 1989 throughout Europe, and that brought about the collapse of the bloc confrontation in Europe and beyond⁵, that the newly created University of Potsdam, and its law faculty, could decide in 1994 not only to hire Eckart Klein to hold its chair of international law, who soon thereafter was elected a member of the Human Rights Committee in 1995⁶, but also to create the Human Rights Centre of the University of Potsdam.⁷

It is against this background that the 30^th anniversary of the Human Rights Centre might provide less an opportunity to look back, but rather to take stock, albeit with a rather broad brush, where the regional and universal system of the protection of human rights stands today, and where it might eventually move in the years to come.

II. 1990 as a watershed and beyond in the built-up of the international human rights protection machinery

To state the obvious, the international system of human rights protection did exist well before 1990.⁸ As a matter of fact, it is still surprising that it was in 1966, i.e. while the confrontation between the two then existing major ideological blocs was still very much ongoing, States agreed on the two human rights covenants which still as of today constitute the bedrock of the universal machinery of human rights protection.⁹ Yet, the effectiveness of the overall system was still quite limited, while the Charter-based system of human rights protection, exemplified by the creation of the then Human Rights Commission, proved to be highly politicized.¹⁰

The regional system of human rights protection in Europe, established by the European Convention of Human Rights, in turn, for one, was limited in its membership to States from Western Europe.¹¹ What is more, even some Western European States such as Portugal, Spain or Greece only joined (respectively re-joined) the Council of Europe at a relatively late stage,¹² and indeed could only join the Council, and then ratify the European Convention on Human Rights, after democracy and the rule of law had been (re-)established in those countries.¹³

Graph 1  Convention for the Protection of Human Rights and Fundamental Freedoms – Status of Ratifications (Parties: 46 as of July 2024)

What is however more is that the overall system established by the European Convention of Human Rights was, when compared with the current system as revised in 1994 by virtue of the Protocol no. 11,¹⁴ much more embryonic in nature. As a matter of fact, the ECtHR, as it then stood until the entry into force of the said protocol, depended on the willingness of the contracting parties to submit to the jurisdiction of the then still existing European Commission on Human Rights under Art. 25 ECHR,¹⁵ and possibly also the European Court of Human Rights under Art. 46 ECHR (version prior to the entry of force of Prot. no. 11 ECHR).¹⁶ In that regard, it is telling that it was only in 1990 that all then 23 contracting parties of the ECHR¹⁷ had submitted declarations under Art. 25 and 46 ECHR (as they then stood) accepting the Commission’s respectively the Court’s jurisdiction to receive individual complaints. As a matter of fact, to provide but some examples, while e.g. Germany had submitted such declarations as early as 1955, other contracting parties of the ECHR such as the United Kingdom (1966), Switzerland (1974), France (1974/1981), Malta (1987), Cyprus (1980/1989) or Türkiye (1987/1990) only did so significantly later.

Graph 2  International Covenant on Civil and Political Rights – Status of Ratifications (Parties: 174 as of July 2024)

This fundamental change of the political circumstances led to a dramatic increase in the number of ratifications of the ECHR as can be seen in graph 1 with a sharp increase in the years after 1990, and with even the Russian Federation becoming a contracting party despite warning voices already then uttered against such step by a group of eminent experts tasked by the Council of Europe.¹⁸

As far as the universal human rights protections system is concerned, a parallel, although less dramatic, positive development can be perceived since the early 1990s as inter alia exemplified by the number of ratifications of the ICCPR (see graph 2), which increased from around 90 contracting parties in 1990 to by now more than 170 State parties. What is even more impressive is that from 1990 until today the number of States that have ratified the Optional Protocol, providing for the possibility to bring individual complaints, more than doubled and increased from 50 State parties in 1990 to by now more than 110 parties (see graph 3).

Graph 3  Optional Protocol to the International Covenant on Civil and Political Rights – Status of Ratifications (Parties: 116 as of July 2024)

At the same time, however, it cannot be overlooked that the number of ratifications per year of the ICCPR (with more than 10 ratifications per year in the early 1990s) has gone down to a very low single digit number since 2008 (see graph 4).

Graph 4  International Covenant on Civil and Political Rights – Ratifications per Year (1990-2024) (Parties: 174 as of July 2024)

The same holds true mutatis mutandis for the Optional Protocol, as shown by graph 5.

Similar developments can also be perceived as far as the other universal human rights treaties, such as the International Covenant on Social, Cultural and Economic Rights, are concerned. It is true that even in more recent years we have seen some additional universal human instruments to be adopted.¹⁹ Yet the latest, namely the International Convention for the Protection of All Persons from Enforced Disappearance, as well as the Convention on the Rights of Persons with Disabilities, both already date from 2006 and, besides, one of them, namely the former one which entails a stricter enforcement mechanism,²⁰ has by now received only 75 ratifications. At the same time, more recent attempts to draft additional universal human rights treaties under the auspices of the United Nations such as the proposed Convention on the Rights of Older Persons (UNCROP) have so far not been proven to be successful.²¹

Graph 5  Optional Protocol to the International Covenant on Civil and Political Rights – Ratifications per Year (1990-2024) (Parties: 116 as of July 2024)

On the whole, it might thus be said that the ‘high times’ of human rights law making, at least as far as the universal level is concerned, has reached its peak by now. It is true that this development has in the last decencies be somewhat balanced by the fact that at least in Africa and the Americas regional human rights protection systems have developed.²² Yet, notwithstanding that, at least as far as the Inter-American Court of Human Rights is concerned, quite impressive jurisprudential developments have taken place,²³ one cannot but note that both the inter-American and the African human rights protection system both lack sufficient funding and suffer from adequate follow-up by the State parties concerned. As a matter of fact, while contracting parties of the African Charter on Human and Peoples' Rights (‘Banjul Charter’) have to provide State reports to the African Commission on Human Rights on a biannually basis, most State parties do not fulfill this obligation.²⁴ What is more is that the jurisdiction of the African Court on Human and Peoples’ Rights, which was established by the 1998 Protocol on the Establishment of the African Court on Human and Peoples’ Rights (ratified by 33 States), to receive cases brought to it directly by individuals and NGOs by virtue of Art. 34 (6) of the said Protocol, is currently only accepted by nine State parties after Rwanda, Tanzania, Benin and Cote d’Ivoire have withdrawn their declarations accepting such jurisdiction. Besides, while the Court has so far delivered a quite significant number of judgments,²⁵ there is a significant lack as far as the implementation of the Court’s judgments are concerned.

Finally, concerning the working methods of the treaty bodies established under the various universal human rights treaties are concerned, it is first, and again in line with the fundamental change of the political setting occurring in the 1990s, almost stunning how those have developed. It is worth recalling that originally it was even doubtful and disputed among the members of the treaty bodies whether the treaty bodies as such could adopt country-specific concluding observations or General Comments,²⁶ while as of today the treaty bodies have developed a full range of procedures including but not limited to follow-up mechanisms to both, Concluding Observations and Views.²⁷ Yet, there by now is an urgent need to strengthen the treaty body system by overhauling and streamlining their procedures. It remains doubtful, however, whether State parties in their entirety, given an increasing lack of homogeneity among them, and divergent perspectives on the role of independent supervisory bodies, are willing to support the treaty bodies in such endeavor and provide adequate funding to be able to do so.

III. Mainstreaming human rights

Traditionally ‘human rights law’ was perceived, and also taught, as a separate, and sometimes even somewhat esoteric, field of international law only so-called ‘droits de l’hommistes’ would deal with.²⁸ This has certainly changed with human rights bodies and courts having plaid a major role in ‘mainstreaming’ human rights issues as part of general international law. This relates inter alia, to provide but some examples, to concepts such as obligations erga omnes and of a jus cogens character,²⁹ the law on reservations to treaties,³⁰ or the concept of extraterritorial jurisdiction.³¹ It also suffices to have a look at the current docket of the International Court of Justice, which apart from more ‘traditional’ boundary and similar cases, includes a whole set of human rights-related cases.³² Those relate to issues of racial discrimination under CERD,³³ State responsibility for acts of genocide,³⁴ the interrelationship between State immunity and human rights,³⁵ torture under UNCAT,³⁶ as well as the right to strike under ILO Convention No. 87.³⁷

Not only have human rights issues thus become part and parcel of the more general discourse of general international law; rather, and even more importantly, human right discourse had an impact on the way international law as a legal order is to be perceived. It is thus not surprising that during its existence, the Human Rights Centre of the University of Potsdam has also dealt with these various forms of interactions.³⁸

IV. New challenges ahead

On the whole, one is thus tempted to state that during the existence of the Centre, which, as mentioned, was created against the background of the then recent fall of the Berlin Wall and the ensuing collapse of the bloc confrontation in Europe, we have witnessed divergent developments.

On the one hand, we have seen an almost stunning rise in the number of States subscribing to substantive treaty-based international human rights standards and accepting, one way or the other, the international supervision of their human rights records.

On the other hand, and more recently, one cannot but note that the number of such States is at least no longer significantly increasing (if at all). Besides, certain States, and notably the Russian Federation and China, have become more critical of the previously uncontested and universally recognized canon of human rights standards (to which they themselves have in many cases formally subscribed) by stressing inter alia the relevance of so-called ‘traditional and family values’, as well as, surprisingly, the concept of non-interference in internal affairs, which claim had long become obsolete at the latest in light of relevant State practice post 1990, as well as inter alia that of the Security Council and other organs of the United Nations ever since.

In light of these and other developments I venture to note three forthcoming challenges for the protection of human rights, as I perceive them, that ought to also inform the research agenda of the Human Rights Centre of the University of Potsdam in the years to come.

For one, climate change is one of the biggest, if not the biggest, challenges for mankind in our time and in the foreseeable future. It raises the fundamental issue as to whom human rights obligations are owed, namely whether not yet born members of future generations can be perceived as bearers of human rights as such, or whether at the very least the currently living population owes them (and if so which) human rights obligations. Climate change also raises a fundamental issue as to vis-à-vis whom such obligations are owed and by whom, namely whether they extend to individuals living beyond the national boundaries of one emitting State, and how to construe the joint responsibility of emitting States.³⁹

Besides, as ever, new technologies pose new, and so far unchartered, challenges for human rights. While some of them, such as the use of unmanned weapons systems or surveillance, have been addressed for quite some time by now, and where at least we see a nucleus of international attempts to regulate them, international human rights issues related to the use of artificial intelligence are so far largely, if not completely, unexplored. As a matter of fact, the crucial question might be how international law might in the future be able to regulate where certain States, given the technological advantages they currently possess, perceive an advantage for them in a lack of any international regulation, and where therefore the concept of a veil of ignorance does not come into play. Even more importantly, the very development of artificial intelligence might even eventually lead to a point where human rights threats might emanate from the to be created artificial intelligence systems themselves. This in turn raise fundamental issues as to what human rights obligations States have ex ante in allowing such systems to be developed, come into being and to what degree their actions must (continue to) be controlled by human beings.

Finally, the international community of States has much diversified since the early 1990s, with States from the Global South increasingly playing an important role in shaping the further development of international law, including human rights law. Hence, the need to further critically analyze the approaches of such States to human rights issues and in order to do so also increase the interaction with academic institutions from that part of the world working in the field of human rights.