INTERNATIONAL PROTECTION OF HUMAN RIGHTS

Lecture 1: INTRODUCTION & CHAPTER 2

INTRODUCTION
 This module concerns the protection afforded to individuals under international law and
examines fundamental concepts, principles, theories and philosophies underpinning the law of
international human rights, as well as the mechanisms installing/enforcing and monitoring
these rights.

STUDY MATERIALS
 The subject guide acts as a focal point for the study of International protection of human
rights (IPHR) on the University of London LLB. Other reading materials will be recommended
with each chapter.

MODULE AIM
-The first part of the module aims to impart an understanding of the context in which
international human rights laws operate and to understand that their nature is not
uncontested.
-The second part of the module aims to scrutinise the manner in which rights are protected
and the institutions and machinery that have been established at the United Nations level to
that end.
-The next part of the module aims to examine the regional machinery which exists for the
protection of rights in Europe, Africa and the Americas (WE WILL SKIP THIS PART).
-The final part of the module examines a number of key issues and rights, such as the rights of
women and children, the right to religion and freedom from torture, and the extent and limits
of effectively realising such rights in the broader context studied earlier.

LEARNING OUTCOMES: KNOWLEDGE

Students completing this module are expected to have knowledge and understanding of the
main concepts and principles of the protection of human rights at the international level. In
particular they should be able to:
1. Explain and analyse the mechanisms and machinery by which rights are protected within the
UN system and by certain universal and regional human rights treaties;
2. Demonstrate understanding of the legal, moral, political and economic context of the module;
3. Comprehend the distinction between ‘universalism’ and ‘cultural relativism’ and the
implications for understanding this field of law.

LEARNING OUTCOMES: SKILLS

Students completing this module should be able to:
1. Apply their knowledge to analyse complex legal questions;
2. Critique a range of legal materials and arguments.
MODULE SYLLABUS
(a) Chapter 2- International law and Human Rights. The nature of international law. The
relationship between international law, human rights and domestic law. The status of the
Universal Declaration. The sovereign state and international law. The individual in international
law.
(b) Chapter 3-The nature of human rights- Philosophies of human rights. The nature of human
rights. Universalism. Cultural relativism and other theories. Rights in Islam. The Bangkok
Declaration. Rights and social transformation. Rights and identity.
(c) Chapter 5-The UN system for the protection and enforcement of human rights. The UN
Charter and the institutions of the UN. The Universal Declaration. Enforcement mechanisms in
the UN system. The treaty bodies. The International Covenant on Civil and Political Rights. The
Optional Protocols. The International Covenant on Economic, Social and Cultural Rights. The
reporting system relating to the Covenants.
(d) Chapter 9-Non-discrimination, equality and the rights of women. The nature of women’s
rights. The Convention on the Elimination of All Forms of Discrimination Against Women. The
Optional Protocol. The Declaration on the Elimination of Violence Against Women. The Special
Rapporteur on Violence Against Women.
(e) Chapter 11-The prohibition of torture and ill treatment under international law. Examining
the 1984 UNCAT and Optional Protocol and ‘Torture in Action’.
(f) Chapter 12-The rights of the child . The Convention on the Rights of the Child. Child labour.
Child soldiers. Children in the criminal justice system.
(g) Chapter 13-The Right to Religious Freedom. Universal documents and approaches, regional
approaches and the right in action.
(h) Chapter 14-The rights of refugees. The nature of refugee rights. The recent history of the
refugee. The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. Women
and girls as refugees. The Convention and national law.
(i) Chapter 15-Dealing with gross atrocities: international humanitarian law, crimes against
humanity and genocide. International humanitarian law, the International Criminal Court and
the trial of Saddam Hussain (BACKUP)

ASSESSMENT
Summative assessment is through a three hour and fifteen minute examination. Students are
required to answer three essay or problem-type questions out of seven.

PRELIMINARY POINTS TO NOTE:

 Human rights can be the most exciting and inspiring of all areas of law to study. It can
also be the most frustrating.
The inspiring quality of human rights comes from their promise to protect individuals
from arbitrary and tyrannical power.
But Human rights can also be disappointing because the reality of rights routinely falls
so far from the ideal. In fact, the more one engages with human rights, the more it
becomes clear that commitments made to human rights by governments are often
rhetoric. It is always easier to accuse one’s opponents of human rights abuses than it is
to put one’s own house in order – human rights are often used as an ideological
weapon in global politics. This has long been the case and continues to be so. The
international institutions dedicated to promoting and protecting human rights offer
some source of hope – but they can also appear bureaucratic, overly politicised and
feeble against those governments that have the political will and power to flout them.

 Another issue worth confronting from the very beginning is the fundamental paradox
of the international system that seeks to protect human rights. The present
mechanisms rely on the will of sovereign states. However, sovereign states are precisely
those bodies that human rights seek to limit. International human rights law works on
the premise that the body ultimately responsible for violating individual rights – the
state – is also the very entity that is seen as the protector of those rights and is to be
held accountable by mechanisms that the state itself has agreed to. Indeed, we will see
that in the early years of the United Nations (UN), the commitment of many
governments to the idea of international human rights was somewhat lukewarm for this
reason. They did not want to be subject to international scrutiny with regard to their
own internal and external affairs. The fundamental problem of international human
rights, then, is in demanding that sovereign states limit their own power in the
interests of human rights.

 Although there has been a marked degree of success in securing a commitment to the
1948 Universal Declaration of Human Rights and the covenants and treaties, the
suspicion remains that nations either ‘opt out’ of those rights that they find
inconvenient, or simply enter into ‘paper’ commitments without putting the resources
and measures in place to achieve the necessary reforms. The issue of how nations are
required to honour their human rights commitments is complex and relates to broader
issues in global politics. During the Cold War, human rights were often an ideological
weapon used by both sides to highlight the superiority of each system. Thus the
Western states highlighted abuses only in those nations that were aligned with the
Soviet bloc rather than the ‘Free World’, notwithstanding the very serious human rights
abuses in some of the latter states. The end of the Cold War may have redrawn the
political map of the world, but the sense in which human rights are often at the mercy
of political and ideological processes remains. One of the most pressing issues here is
the so-called ‘war on terror’, which has been impacting on the international politics of
human rights in numerous ways.
  If we move from the politics of human rights to the nature of the subject itself, there are
also issues that need to be confronted from the beginning. What can often seem
difficult when studying human rights is the proliferation and duplication between
different treaties within the UN system. There are also distinctions between the UN
system and the regional systems, such as those relating to Africa, Europe and the
Americas. This, in part, reflects the incremental development of human rights law.

CHAPTER 2: International law and human rights

 International human rights law is broadly a subdivision of public international law.

 A study of ‘international human rights law’ thus has to be in the context of public
international law and requires an understanding of the general principles of
international law.

A brief history of international law

 International law is as old as society itself.
 It is the law between nations – indeed, an earlier term for what we now call ‘international law’
was the ‘law of nations’.
 Political entities – be they city states in Europe, empires in what is now China and Egypt or
tribes and nations in North America – have existed for millennia. These entities of course had to
interact with others, most usually those near them – be it for trade or conflict – and thus some
basic rules had to be established. Messages had to be exchanged, for example, if one political
entity wished to trade with another.
 Thus it is no surprise that the norms on diplomatic relations are the oldest rules of
international law.
 States also often engaged in conflict and rules were required to regulate behaviour and
conduct. Whatever states agreed between themselves, for example, not killing children or
priests, was what became international law.
 Thus the earliest expressions of international law were norms that reflected the practices of
states. These became known as customary international law, which is the oldest of the sources
of international law.

 Modern international law stems from the consequences of European history and associated
political developments. Central to its development is the Treaty of Westphalia (1648), also
known as the Peace of Westphalia. This was one of a series of treaties agreed at the end of the
religious wars in Europe and it created a network of sovereign states with formal equal
standing. Each state was responsible for its internal affairs and others could not and should not
interfere in such matters.
 International law in this form – which is the basis for international law as it still exists now –
was born out of a need for states to cooperate with each other. As states have become
increasingly integrated and have greater and more regular contact, the need for cooperation has
increased. Globalisation as we now experience it has led to a proliferation of rules that are the
product of international law.
 International law in its classic ‘European form’, however, is a reflection of the culture and
values of European states – thus Christianity was a major influence in its formative era. It is no
coincidence that the state system we now have is based on the European model of statehood,
as it is European powers which one way or another colonised all of the globe (except
Antarctica); post-colonial states (the majority of the world’s states) have emerged from their
colonial experience, replicating the European model of statehood. This universalism of what
was a system of ‘European’ international law necessitated evolution and transition. The
genesis of this transition from a European Christian tradition to a more secular and legal one can
be traced to the defeat of the French Emperor Napoleon and the settlement reached at the end
of those conflicts – known as the Congress of Vienna, 1814–15. At this juncture, relations
between European powers sought to maintain a balance of power, guaranteed by complicated
legal procedures and alliances. As Martti Koskenniemi notes, ‘Contemporaries increasingly saw
Europe as a “system” of independent and equal political communities…they began to assume
that the governing principles needed to become neutral and objective – that is, legal.’
(Koskenniemi, M. ‘The politics of international law’, EJIL 1(1) 1990, p.4.
[Link]

 As has been alluded to above in passing, international society has undergone an enormous
transformation in the last 75 or so years and international law expanded massively in terms of
both content and participants during the second half of the 20th century and the first two
decades of this century. Technology and innovation are behind many such legal developments.
For example, letters being sent abroad necessitated the establishment of the Universal Postal
Union (UPU) in 1874 – which still forms the basis of how we send items abroad in the post. The
invention of the telephone, aircraft, the internet and so forth have all necessitated regulation at
the international level.
 International law thus also slowly started to recognise participants that went beyond states.
One only has to think in contemporary society of the UN, the World Trade Organization (WTO),
the European Union (EU), the World Bank and the International Monetary Fund (IMF) as major
participants – and the proliferation of such organisations is also important to note.
 In a similar vein, we can observe that the number of states has increased exponentially since
the latter half of the 20th century. This can be seen in membership of the UN. To be a member
of the UN an entity must be a state. Since the UN was established in 1945, membership has
increased approximately fourfold.

 One point worth noting is that the ‘end’ of the Cold War (1989–90) has led to some new issues
and tensions arising in geopolitics but numerous other older issues continue to have relevance.
For example, events in Syria since 2011 highlight many differing tensions: those brought about
between Russian interests, on the one hand, and other states, on the other. The presence of
 militant forms of Islamic extremism, tensions between rival Muslim states and issues concerning
the use of force all coincide.
What is international law?

 To understand international human rights law, it is important to understand international law.

 International law differs significantly from domestic legal systems.
 At its simplest, international law is a horizontal legal system, with states and very few other
legal persons as the participants. States are all formally and legally equal – even though there is
enormous disparity in their power, influence and wealth. It is primarily, although not exclusively
based upon consent.
 This is in contrast to domestic legal systems, which are vertical in the sense that the state
exists in a vertically superior position to individuals in their internal (domestic law) legal
relationship.
 International law is also primarily but not entirely consensual in nature.
 The issue of consent means that the manner in which the law is enforced will also differ from
that in a domestic legal system:
-In domestic legal systems for example, it is possible to take another to court for a breach of
contract in the domestic context.
-In international law the difference is marked:
1. The International Court of Justice (ICJ), based at The Hague, does act as a world court
of sorts (indeed, it is sometimes incorrectly called the World Court) but it is not a
compulsory court as such. The Court was originally established in the aftermath of the
First World War (as the Permanent Court of International Justice) and in its current
incarnation it has been established by the Charter of the UN, with the Statute of the
Court an integral part of the Charter.
2. The UN Charter states that the ICJ is the principal judicial organ of the UN. The Court
has the jurisdiction under Article 36 of its Statute to decide disputes of a legal nature
submitted to it by states. It can also deliver Advisory Opinions when requested by
certain organs of the United Nations, primarily the General Assembly and the Security
Council.
3. The jurisdiction of the Court is, however, based upon consent – a state cannot be
taken to the ICJ against its wishes; it must have agreed with regard to the issue at
hand to the ICJ having jurisdiction over it at some point or other and in some form or
other.
4. It is important to bear in mind, however, that if the ICJ gives a judgment which a state
that is party to a dispute does not find acceptable, there is often little that can
realistically be done to compel the state in question to comply with the judgment.
Under Article 94 of the Charter, the Security Council can decide on appropriate
measures to give effect to an ICJ judgment but the problem is easy to see if the state in
question is, for example, a permanent member of the Security Council with a veto
power, or a close ally of such a state. The more powerful and influential a state, the
less that can be done, and this is despite the fact that, under Article 59 of the ICJ’s
Statute, the ICJ’s judgments are legally binding. By and large, however, states do
comply with the judgments of the ICJ.
THE SOURCES OF INTERNATIONAL LAW
 Having discussed what international law is, it is important to turn to where it comes from.
 The most common starting place is Article 38, paragraph 1 of the Statute of the ICJ which, in
declaring the Court’s function to decide disputes ‘in accordance with international law’, goes on
to detail the sources of international law as:
a. INTERNATIONAL CONVENTIONS, whether general or particular,
establishing rules expressly recognised by the contesting states
b. INTERNATIONAL CUSTOM, as evidence of a general practice accepted as law
c. The GENERAL PRINCIPLES OF LAW recognised by civilised nations
d. Subject to the provisions of Article 59, JUDICIAL DECISIONS and the
TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS
of the various nations, as subsidiary means for the determination of rules of law.

This list is far from complete and it was never meant to be. It simply refers to the sources (in
practical order) that the Court will refer to when trying to determine a matter before it.
The Court over time has recognised a number of other sources, and further other sources are
now universally recognised.
 Other sources of international law include unilateral acts of international law by states and
the decisions of certain international organisations – although both of these can also be
considered to come within the list in Article 38.
 An important source of obligation in international human rights law (and also international
environmental law) is SOFT LAW.
Soft law are those principles which are found in written
documents- documents which are NOT legally binding, for
example Declarations. They seek to set out what the law might be i.e. they seek to
set out aspirations. The term ‘soft law’ is of course a misnomer – law is ‘hard’ but it is also
flexible as it can be used as a term to describe a plethora of international instruments where
there is no kernel of formally binding or identifiable obligation. Thus it can encompass treaties
(which are formal law) but which contain loose obligations or voluntary resolutions. It can also
cover codes of conduct produced by organisations established by states. The term may also
include statements issued by eminent international lawyers setting out various principles.
Each of these will differ in the extent to which states may pay attention to them and the extent
to which the ICJ will refer to them. Soft law can thus be seen as norms that are embryonic at
the time of adoption but which may crystallise into an identifiable and definable legal
obligation.

The next part of this chapter will examine in more detail the sources of international law described
above. It will also show how these sources include human rights material.
SOURCE 1: TREATIES
 Different terms are used: Treaties, Conventions, Protocols,
Covenants -they all mean the same thing.
 The law that regulates treaties (a source of law in their own right) is neatly encapsulated in the
1969 Vienna Convention on the Law of Treaties. Thus the law of treaties can be found in a
treaty. In many senses this highlights some of the issues concerning sources of international law
and their relationship, as the Vienna Convention is binding upon those who are party to it, as a
treaty, and upon others as customary international law.
 Treaties provide the classic paradigm of nations committing themselves to binding obligations.
 Due to the primarily consensual nature of international law, it is important to bear in mind that
the provisions of a treaty are only binding upon a state if it is party to that treaty.

The principal human rights treaties

Some of the main treaties for our purposes are:

1. The International Covenant on Civil and Political Rights 1966

2. the International Covenant on Economic, Social and Cultural Rights 1966
(These are collectively known as the 1966 Covenants)
3. The Convention on the Elimination of all Forms of Discrimination against Women 1979
4. The Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment 1984
5. The UN Convention on the Rights of the Child 1989

It is important to note that there are a number of other human rights treaties that are not examined in
this module. They include UN treaties such as the International Convention for the Protection of All
Persons from Enforced Disappearance 2006 and regional treaties such as the Inter-American Convention
on Forced Disappearance of Persons 1994.

Definition of a treaty
A treaty is defined in the Vienna Convention on the Law of Treaties (VCLT) 1969 as ‘an international
agreement concluded between states in written form and governed by international law…’ (Article
2(1)(a)). The Vienna Convention is regarded as reflecting customary international law, and the definition
contained therein of a treaty is accepted as referring to those agreements which are:

 in WRITTEN FORM (treaties can be unwritten, but in this case the Vienna Convention would not
apply)
 BETWEEN STATES
 GOVERNED BY INTERNATIONAL LAW.

Treaties can be either between two states or parties (bipartite or bilateral) or between a number of
states or parties (multipartite or multilateral).

States that are party to a treaty are referred to as Contracting Parties. States NOT PARTY to a treaty
are referred to as non-Contracting Parties.
The relationship between treaties and customary law
Treaties and custom have a clear relationship between them:
 The same obligation can extend to the same state from either source. Thus the source of the
obligation can be a treaty or custom and sometimes both. There is thus a complex relationship
between treaties and customary law; the two sources tend in practice to overlap. If not, they
may leave an intermediate area between them.
 The act of drafting and debating the provisions of a treaty often leads to clarity as to what is
the content of the customary rule. Sometimes, states accept that the existing customary
position needs to evolve and thus agree in the provision of a treaty to adapt it between
themselves with an eye to the law evolving. Over time, the treaty provision that was
progressive at the time of adoption may start to reflect the customary position as the
customary rule and state practice evolve and come into line with the treaty provision.
 Treaty law will normally supersede previous contrary customary international law.
 Generally, it can be said that in the event of inconsistency, whichever is the most
recent – be it custom or treaty – prevails between the same parties.
 This, however, needs to take into account the fact that more specialised rules tend to
prevail, or more general ones in the event of a conflict:
 Article 53 of the Vienna Convention on the Law of Treaties does, however,
void and terminate an existing treaty if a new PEREMPTORY NORM of general
international law emerges. A peremptory norm is one that is considered
normatively superior to other rules of international law.
 The formal definition of a peremptory norm can be found in Article 64 VCLT,
which defines it as: ‘a norm accepted and recognised by the international
community of states as a whole. As a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.’
 For example, suppose in 1825, Britain and France agree in a treaty to trade in
slaves. Subsequently, a peremptory norm develops (which it has) that slavery in
all forms is to be prohibited and eradicated. Once such a peremptory norm is
accepted as having developed, then the 1825 treaty becomes void and
terminates. Article 64 also states that a treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law.
Thus a treaty that regulated trade in slaves, for example, would simply be void
and of no legal significance.

Reservations
 A reservation is indicative of the consensual nature of international law.
 Reservations also highlight the pragmatism of international law in light of its now universal
nature.
  A reservation is where a state seeks to exclude the application to it of certain provisions of a
treaty which it is otherwise willing to accept. As Article 2(1)(d) VCLT defines it, a reservation is:
‘[a] unilateral statement, however phrased or named, made by a state, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that state.’

 The TRADITIONAL APPROACH was that a state could only insert a reservation if all other
states to the party consented. In a diverse, interrelated and increasingly complex world this
would make meaningful law-making virtually impossible. The ‘common’ level of agreement on
many issues would be so low, it would make little or no positive difference. Furthermore, any
state which was not an original party to a treaty would require the agreement of all other states
parties to that treaty. It would also mean that ‘later’ states could not express a view on the
reservations of other states who were already party to the treaty. Both such consequences are
iniquitous.

 The ICJ had the opportunity to tackle the issue of the validity of reservations relatively early
on in its current incarnation, when it was requested to provide an Advisory Opinion on the
matter and did so in 1951. It was clear at the time that the global geopolitical situation was
transforming and the ICJ’s approach anticipated an increasingly diverse and divisive globe. In its
Advisory Opinion the Court adopted a more flexible and realistic approach, an approach which
was attractive to states and which can now be seen in Article 19 VCLT. Article 19 stipulates that
a state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:

(a) the reservation is prohibited by the treaty

(b) the treaty provides that only specified reservations, which do not include the reservation in
question, may be made, or
(c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.

A reservation that does not fall foul of the above is deemed acceptable although of course
there is much scope for disagreement as to whether a reservation, for example, is compatible
with the object and purpose of a treaty. This is a real problem in the human rights field.
It is also important to bear in mind that the VCLT sets out a number of principles that are
relevant here: indeed, the foundational principle of the law of treaties is that of acting in good
faith.

SOURCE 2: CUSTOMARY LAW

What is custom?
 Professor Brierly in his 1963 classic, The law of nations, defined custom as ‘[s]omething more
than mere habit or usage; it is a usage felt by those who follow it to be an obligatory one’.
 Thus, at its simplest, customary law is how states behave because they feel they are legally
obliged to do so.
 For example, one of the oldest rules of international law is the protection of envoys and
diplomats. Each state both sends envoys and receives them. A state can be confident its envoys
will not be harmed in another state and will not harm envoys of other states who are present in
its territory. Over time, this practice was perceived as not just what states did but as how they
were obliged to behave. At its simplest, that is customary international law.
 Article 38 (1)(b) stipulates TWO ESSENTIAL ELEMENTS OF
CUSTOMARY LAW: (i) a ‘GENERAL PRACTICE’, and (ii)
THAT PRACTICE IS ACCEPTED AS LAW – this is the ‘mental’ element,
which is known as opinio juris.
 But opinio juris appears paradoxical:
How can a practice develop into a rule if states have to believe the rule already exists before
their acts of practice can be significant for the creation of the rule? In reality, the two elements
– state practice and opinio juris – are closely intertwined. Thus they cannot be seen in isolation
but as overlapping considerations. Nevertheless there are still issues to be considered. For
example, the following things may need to be considered in determining if a customary rule
exists.
a. For how long must states have behaved this way?
b. Which states must have behaved in the manner in question – is the practice of some states
more important than that of others?
c. What is actually evidence of the practice or behaviour in question?
d. How do you determine the belief that the behaviour is obligatory?
e. When did that belief crystallise?

All of these questions are important and each one may affect the outcome of a dispute – it is
important to bear in mind, however, that determining whether a rule is customary is not
entirely scientific – it is relative. This was summed up very well by Judge Tanaka in his
dissenting opinion in the North Sea Continental Shelf Case (1969) ICJ Reports 3 where he
stated:

‘the process of generation of a customary law is relative in its manner…The time factor,
namely the duration of custom is relative; the same with…state practice. Not only must each
factor generating a customary law be appraised according to the occasion and circumstances,
but the formation as a whole must be considered as an organic and dynamic process. We must
not scrutinise formalistically the conditions required for customary law and forget the social
necessity…’

Returning to the questions above as to what is needed for a rule of customary international law
to exist with regard to practice, the judgment of the majority of the ICJ in the North Sea
Continental Shelf case is illustrative. At para.74 it noted:
 ‘Although the passage of only a short period of time is not necessarily, of itself, a bar to the
formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, state practice, including that of states whose interests are
specifically affected, should have been both extensive and virtually uniform in the sense of the
provision invoked.’

It would appear from the reasoning of the court that practice is established by those states
whose interests are most affected and by uniformity of practice – the period of time is not the
key factor.
Thus, for example, the practice of states who have a coastline is more important than the
views of land-locked states when it comes to determining a state’s powers over the water
adjacent to its land territories. So long as that practice is extensive and uniform, even if for a
relatively short time, that will be sufficient.

That still leaves us with the questions related to why states behave the way they do: HOW DO
WE PROVE THE SENSE OF OBLIGATION? It is not easy. States behave in many ways – public
statements by diplomats and ministers, arguments made before courts, national laws and how
states have reacted to what other states do are all examples of state practice. In the very
famous Nicaragua case (Military and Paramilitary Activities in and against Nicaragua (1986)
ICJ Rep 14) the ICJ stated that:

‘In order to deduce the existence of customary rules, the Court deems it sufficient that the
conduct of states should, in general, be consistent with such rules, and that instances of state
conduct inconsistent with a given rule should generally have been treated as breaches of that
rule, and not as indications of the recognition of a new rule…’

Thus, we can evidence the sense of obligation states feel by considering how they react to the
behaviour of other states. If states consider the behaviour of another state to be contrary to
the existing rule – by stating this is so – that reinforces the existence of the rule as this is
further practice believing the rule is law. If, however, a state accepts a breach of a customary
rule then that undermines the existing rule and may lead to the establishment of a new rule –
which reflects the more recent behaviour. However, there may and often will be a period when
two rules exist, one binding some states, and the other rule binding others.

Resolutions and customary law

An issue that often confuses matters is the status of resolutions of the General Assembly of the
UN. The most important thing to bear in mind is that General Assembly resolutions are not
formally legally binding. Furthermore, the instruments adopted by the General Assembly that
relate to human rights matters are adopted as ‘declarations’ and ‘resolutions’. Neither of
these suggest legally binding content. Notwithstanding this, it is without doubt that in some
(very few in numerical terms) cases General Assembly Resolutions can be important in the
 development of customary rules. Each resolution is different, and it is important to examine the
wording of the resolution in question and not to generalise.

SOURCE 3: GENERAL PRINCIPLES

What are ‘general principles’?

Professor Crawford provides a useful general description of this source of international law:

‘A rigid categorisation of sources is inappropriate. Examples of this type of general principle of

international law are the principles of consent, reciprocity, equality of states, finality of
awards and settlements, the legal validity of agreements, good faith, domestic jurisdiction,
and the freedom of the seas.’
(Crawford, J. Brownlie’s principles of international law. (Oxford: Oxford University Press, 2012)
eighth edition, p.37.)

It would appear, then, that general principles describe a number of different concepts. Judge
Ammoun in the North Sea Continental Shelf case described these principles as ‘nothing other
than the norms common to the different legislations of the world… transposed to the
international legal system’. They can thus be procedural and also substantive. The ICJ in
practice uses general principles – such as equity and good faith – but rarely specifically states
that it is using them as a source of law.

SOURCE 4: JUDICIAL DECISIONS AND TEACHINGS OF

THE MOST HIGHLY QUALIFIED PUBLICISTS
(i) JUDICIAL DECISIONS
The above are primary sources of international law.
Judicial decisions are a subsidiary means for the Court to determine the law on a matter. The
decisions of the numerous international courts and tribunals and the supreme domestic courts
can be used by the ICJ to develop the content of international law. Thus they are indicative as
to what the law on a matter may be. In human rights law this is important as the number of
international and regional bodies dealing with human rights issues has increased significantly.
Likewise, domestic courts frequently deal with the application and interpretation of human
rights instruments.

The ICJ is also competent to deliver Advisory Opinions on any legal question at the request of
the General Assembly of the United Nations, the Security Council and other bodies so
authorised. Advisory Opinions are, as the term suggests, only advisory. They are not legally
 binding, but the Court has delivered a number of opinions which have contributed to the
growth of substantive international law.

Advisory Opinions which have been influential in the development of international law include
for example:

-Legality of the Use by a State of Nuclear Weapons in Armed Conflict 35 ILM 809 (1996)
-Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2003–
04)

(ii) The work of eminent jurists

Juristic writings are of value in that they may be referred to as a means of settling a dispute.
Such work can assist in identifying what the law is at a particular time. International courts,
especially the ICJ, rarely if ever expressly refer to such work; however, we know it is relevant
and important. This is especially so if we consider that the ICJ does routinely refer to the work
of the International Law Commission (ILC), a body set up by the General Assembly of the UN.
The ILC is primarily composed of eminent international law professors, and its work has been
incredibly important in clarifying aspects of international law, for example, the law of treaties
and the issue of state responsibility. Thus, although the work of the ILC and the writings of
jurists are not a source of law, they are important in the development and articulation of
international law.

International law, human rights and domestic law

Monism and dualism
The way in which a state accepts international law is a matter of domestic law. The TRADITIONAL WAY
in which this is considered is to draw a contrast between approaches, which are labelled MONIST and
DUALIST:

 As the term suggests, a MONIST APPROACH considers there is one legal order of which
international law is a part. The essence of monism is that international law and domestic law
are inherently part of one coherent system. The Netherlands is often considered a classic
monist state.
 By definition, a DUALIST APPROACH considers two separate legal systems – domestic law that
applies internally and international law that binds the state in its relations with other states
but has little role automatically in the internal legal system. The dualist theory holds that
international law and domestic law exist in different spheres. There is no clash between them;
each is supreme within its own area. The United Kingdom is a classic dualist state.
A useful statement of the approach adopted can be seen in Lord Hoffman’s judgment in R v
Lyons [2003] 1 AC 976. He stated:
 ‘…it is firmly established that international treaties do not form part of English law and that
English courts have no jurisdiction to interpret or apply them…Parliament may pass a law
which mirrors the terms of the treaty and in that sense incorporates the treaty into English
law. But….It is not the treaty but the statute which forms part of English law. And English
courts will not (unless the statute expressly so provides) be bound to give effect to
interpretations of the treaty by an international court, even though the United Kingdom is
bound by international law to do so. Of course there is a strong presumption in favour of
interpreting English law (whether common law or statute) in a way which does not place the
United Kingdom in breach of an international obligation.’

In reality, there is a spectrum of approaches. States often adopt different approaches in respect of
different types of international law.

Thus customary international law may automatically be considered part of the domestic legal
order but a treaty may only have effect internally if there is a specific legislative measure giving
effect to it. In other states, custom and treaties to which the state is party are automatically part
of the internal legal system.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

The UDHR was adopted by the General Assembly, with 48 states voting in favour, in 1948.

It is necessary to now consider the Declaration in outline and to then turn to assess whether or not
the 1948 Universal Declaration of Human Rights (UDHR) is legally binding. Whereas the drafters of the
Declaration, and those who studied it in the early years of its operation, doubted whether the
Declaration stated legally binding duties, the present position is arguably different.

In the final session of the Grand Assembly of the UN, the chair of the Assembly and representative of
the United States, Eleanor Roosevelt stated:

‘[the Declaration] might well become the international Magna Carta of all mankind….’

Outline of the Declaration

 Article 1 articulates the underlying principles of the Declaration: ‘All human beings are born free
and equal in dignity and rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.’
This is clearly not legal language; rather, it is the statement of a philosophical or ethical
principle. To be human is to have inherent qualities of reason and conscience; qualities that
make one more than simply an individual: one is compelled to act towards others in a spirit of
community. As the notes to the Declaration outline, this is what makes man different from
animals: this is presumably why we can speak of human rights but not animal rights.
 Article 2 puts forward two basic principles: equality and non-discrimination. These principles
apply to the enjoyment of human rights and fundamental freedoms, and thus forbid
‘distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status’.

 Article 3 has been described as ‘the first cornerstone of the Declaration’. It states the right to
life, liberty and security of persons. This is a fundamental right, essential to the operation of
the other rights of the Declaration.

Article 3 introduces Articles 4–21. These articles detail civil and political rights and include
freedom from slavery and servitude; freedom from torture and cruel, inhuman or degrading
treatment or punishment; the right to recognition everywhere as a person before the law; the
right to an effective judicial remedy; freedom from arbitrary arrest, detention or exile; the right
to a fair trial and public hearing by an independent and impartial tribunal; the right to be
presumed innocent until proved guilty; freedom from arbitrary interference with privacy, family,
home or correspondence; freedom of movement and residence; the right of asylum; the right to
a nationality; the right to marry and to found a family; the right to own property; freedom of
thought, conscience and religion; freedom of opinion and expression; the right to peaceful
assembly and association; and the right to take part in the government of one’s country and to
equal access to public service in one’s country.

 Article 22 has been called ‘the second cornerstone of the Declaration’. This article can be read
as an introduction to Articles 23–27, which enumerate economic, social and cultural rights.
These rights include the right to social security; the right to work; the right to equal pay for
equal work; the right to rest and leisure; the right to a standard of living adequate for health
and well-being; the right to education; and the right to participate in the cultural life of the
community. Economic, social and cultural rights are predicated on the membership of a political
community.
Echoing Article 1, these rights are linked to the realisation of human dignity. Rather than legal
claims, they are to be realised ‘through national effort and international cooperation’. But,
one must allow that acknowledgements must be made of the limited capacity of some states
and thus the realisation of these rights is dependent on the resources of different states.

 Articles 28–30 stress that duties complement rights. Article 29 states that ‘in the exercise of
his rights and freedoms, everyone shall be subject only to such limitations as are determined
by law solely for the purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society’. It adds that in no case may human rights and
fundamental freedoms be exercised contrary to the purposes and principles of the United
Nations. Article 30 emphasises that no state, group or person may claim any right, under the
Declaration, ‘to engage in any activity or to perform any act aimed at the destruction of any of
the rights and freedoms set forth’ in the Declaration.
The legal value of the Declaration
 At the time the Declaration was adopted in 1948, the consensus among those involved in
drafting it and adopting it was that it was NOT meant to be LEGALLY BINDING. It was not
drafted as a treaty; indeed, it was adopted as a declaration as there was no agreement at all
that it should be legally binding, and so it was adopted with a view to subsequently being able
to draft the principles and ideals in the UDHR in legally binding form. This is why what became
the 1966 Covenants (the International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights) were adopted as treaties and it took the
best part of 20 years of negotiation and compromise to reach legal agreement on the principles
and rights set out in the 1948 Declaration.

 However, might there be an ALTERNATIVE WAY of understanding the Declaration? It can be

argued that the Declaration stated binding rules of customary law – after all, the principles
were agreed over a number of years by representatives of the global community as it then
existed. This, however, seems far-fetched as far as the position in 1948 is concerned. The
Declaration was adopted by 48 states but eight states abstained from voting for it. Although it
has been argued that this was due to politics, this is simply not nuanced enough and is far too
dismissive of the opposition of some states. Furthermore, the states adopting the UDHR were
hardly representative of the global community – and the opening statement ‘all human beings
are born free and equal in dignity and rights’ was hardly credible when supported by
numerous European colonial powers and the USA, which still had deeply segregated
communities and systematically discriminated against populations who were primarily African-
American.

 There is, however, ANOTHER WAY TO CONSIDER the UDHR. The provisions of the UDHR WERE
NOT customary international law AT THE TIME OF THE UDHR’s ADOPTION. However, the
adoption of the UDHR led to a process over time, through the repeated adoption of other
declarations and resolutions and treaties, whereby many but certainly not all of the provisions
of the UDHR now represent customary international law. The prohibition of torture and slavery
are good examples. Other fundamental rights, however, which are undeniably customary are
not mentioned in the UDHR – self-determination being an example. Thus the UDHR has been of
significant importance in the crystallisation of customary international law for some human
rights but not all.

REMEDIES FOR BREACHES OF HUMAN RIGHTS

 Some human rights treaties stipulate that contracting states provide a remedy under domestic
law for any breaches of the substantive rights entailed therein. This may be in addition to any
enforcement mechanisms that may be established by the treaty itself.

 It is important to bear in mind, however, that certainly not all treaties require domestic
remedies nor do they set up an enforcement mechanism. The 1951 Geneva Convention on the
Rights of Refugees, a major treaty related to human rights matters, is a good example of a
 treaty that neither establishes an enforcement mechanism nor requires states to provide
remedies, nor is it even implemented into the domestic law of states parties.

 It is certainly discernible that every recent major global human rights treaty adopted in recent
years does establish an enforcement body.

 Not all treaties, however, require that a state party to the treaty provides for remedies of
breaches of that treaty within the domestic law of the state party.

 In some cases, it may be possible to seek damages from perpetrators of breaches of human
rights in domestic courts, either when an international agreement has been incorporated into
domestic law, or where the rights in question are recognised as being part of customary
international law, or the rights are recognised under the general principles of domestic law.

 Thus, whether or not a particular domestic court can provide a remedy for a human rights
violation is a complex question regarding the relationship between domestic law in that state
and international law.

A note on the individual in international law

 The protection of human rights under international law raises the problem of the status of the
INDIVIDUAL in international law.
 At first glance, one might think that the various systems set up to protect human rights under
international law would be able to function like a domestic legal system. An individual would
be able to petition a court and obtain a legal remedy if the court found that the individual’s
human rights had been violated.
 BUT this model DOES NOT apply to that part of international law that deals with human rights.
In part, this is because, in international law, the STATE and NOT the INDIVIDUAL is seen as
having LEGAL PERSONALITY. INTERNATIONAL LEGAL PERSONALITY means that a body is
‘capable of possessing international rights and duties and has the capacity to maintain its
rights by bringing international claims’. (Reparation for injuries suffered in the service of the
UN, Advisory Opinion, ICJ Rep, 1949, p.174.) ONLY STATES HAVE THE TOTALITY OF RIGHTS AND
DUTIES UNDER INTERNATIONAL LAW. This effectively means that STATES, not individuals, are
the SUBJECTS of international law.
 Indeed, individuals have NO STANDING before the International Court of Justice. This poses a
particular problem for human rights law. If human rights law affirms the rights of the individual
then an international legal system that is predicated on the rights and duties of states is not the
best way to protect individual rights. As was noted in the introduction, this is the central
paradox of human rights law; the body that violates individual rights, the state, is the body
made responsible for protecting individual rights as defined by the state and the method of
enforcement is designed by the state in conjunction with other states.
 It is, however, clear that INTERNATIONAL LAW NOW RECOGNISES IN VERY LIMITED CONTEXTS
(human rights treaties) THE RIGHTS OF INDIVIDUALS. It is also clear that international law has
since 1945 also recognised the DUTIES AND RESPONSIBILITIES OF INDIVIDUALS FOR THE
 PERPETRATION OF CERTAIN CRIMES. This relates to war crimes and crimes against humanity –
which occur during situations of armed conflict. International law has developed enormously in
both regards but it is important to bear in mind that both apply in limited contexts. Within
these contexts, however, individuals now have standing. But as states design and agree the
mechanisms, they rarely provide the sort of remedy that can be witnessed in domestic legal
orders.
 The issue of the standing of the individual in international law raises the whole problem of the
enforcement of human rights standards. It begs the question: ‘what do we mean by
enforcement?’ As suggested above, lawyers tend to think of enforcement in terms of the
remedies of courts. Understanding human rights law demands that one has a much broader
‘political’ grasp of when human rights standards might be enforced and when they might not.
 Thus, international law, as the foundation for the international protection of human rights,
tends to recognise states as the holders of rights and duties, not individuals. This has
influenced the development of human rights law. We cannot think of the model of domestic
law. Rather, we need to appreciate that enforcement mechanisms rarely depend on
procedures that involve a court issuing a remedy.