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    Human Rights

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    refai ali

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    Human Rights

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    refai ali
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    human rights (2)

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    Human Rights

    Uploaded by

    refai ali

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    © All Rights Reserved
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    SOURCES OF

    INTERNATIONAL
    HUMAN RIGHTS LAW
    SOURCES OF
    INTERNATIONAL
    HUMAN RIGHTS LAW
    O Since time immemorial, states and peoples have entered into
    formal relationships with each other. Over the ages, traditions
    have developed on how such relationships are conducted.
    O In international law there is no single legislature, nor is there a
    single enforcing institution. Consequently, international law can
    only be established with the consent of states and is primarily
    dependent on self-enforcement by those same states.
    O This consent, from which the rules of international law are
    derived, may be expressed in various ways. The obvious mode is
    an explicit treaty, imposing obligations on the states parties. Such
    ‘treaty law’ constitutes a dominant part of modern international
    law.
    classification of
    sources of
    international law
    O The internationally accepted classification of sources of
    international law is formulated in Article 38 of the Statute of the
    International Court of Justice. These are:
    O a) International conventions, whether general or particular;
    O b) International custom, as evidence of general practice
    accepted as law;
    O c) The general principles of law recognized by civilized nations;
    O d) Subsidiary means for the determination of rules of law such
    as judicial decisions and teachings of the most highly qualified
    publicists.
    International conventions

    O International treaties are contracts signed between states. They are


    legally binding and impose mutual obligations on the states that are
    party to any particular treaty (states parties). The main particularity of
    human rights treaties is that they impose obligations on states about
    the manner in which they treat all individuals within their jurisdiction.
    O Even though the sources of international law are not hierarchical,
    treaties have some degree of primacy. Nowadays, more than forty
    major international conventions for the protection of human rights
    have been adopted. International human rights treaties bear various
    titles, including ‘covenant’, ‘convention’ and ‘protocol’; but what they
    share are the explicit indication of states parties to be bound by their
    terms.
    Universal conventions
    for the protection of
    human rights
    O Human rights had already found expression in the Covenant of
    the League of Nations, which led, inter alia, to the creation of the
    International Labor Organization.
    O the UN Charter clearly speaks of ‘promoting and encouraging
    respect for human rights and for fundamental freedoms for all
    without distinction as to race, sex, language or religion’ (Article
    1, para. 3). The idea of promulgating an ‘international bill of
    rights’ was developed immediately afterwards and led to the
    adoption in 1948 of the Universal Declaration of Human Rights
    (UDHR).
    The UDHR

    O adopted by a resolution of the United Nations General


    Assembly (UNGA) 1948, although not a treaty, is the earliest
    comprehensive human rights instrument adopted by the
    international community.
    The two covenants

    O in 1966, the International Covenant on Economic, Social and


    Cultural Rights (ICESCR) and the International Covenant on
    Civil and Political Rights (ICCPR) were adopted, as well as
    the First Optional Protocol to the ICCPR, which established
    an individual complaints procedure. Both Covenants and the
    Optional Protocol entered into force in 1976. A Second
    Optional Protocol to the ICCPR, on the abolition of the death
    penalty, was adopted in 1989 and entered into force in 1991.
    International Bill of Human Rights

    O The ‘International Bill of Human Rights’ consists of the


    Universal Declaration of Human Rights, the ICESCR, and
    the ICCPR and its two Optional Protocols. The
    International Bill of Rights is the basis for numerous
    conventions and national constitutions.
    O The ICESCR and the ICCPR are key international human
    rights instruments. They have a common Preamble and
    Article 1, in which the right to self-determination is
    defined. The ICCPR primarily contains civil and political
    rights. The supervisory body is the Human Rights
    Committee. The ICESCR consists of a catalogue of
    economic, social and cultural rights in the same vein as the
    ‘social’ part of the UDHR.
    CONVENTIONS ELABORATING
    ON CERTAIN RIGHTS, INTER
    ALIA:

    O The Convention on the Prevention and Punishment of the Crime


    of Genocide (1948).
    O The Convention Against Torture and Other Cruel, Inhuman or
    Degrading Treatment or Punishment (1984)
    CONVENTIONS DEALING WITH CERTAIN
    CATEGORIES OF PERSONS WHICH MAY
    NEED SPECIAL PROTECTION, INTER ALIA

    O The Convention relating to the Status of Refugees (1951), and


    the 1967 Protocol thereto.
    O The Convention on the Rights of the Child (1989).
    O The International Convention on the Protection of the Rights
    of All Migrant Workers and Members of Their Families
    (2000).
    CONVENTIONS SEEKING TO
    ELIMINATE DISCRIMINATION
    O UNESCO Convention against Discrimination in Education
    (1960) .
    O The International Convention on the Elimination of All
    Forms of Racial Discrimination (1965).
    O The Convention on the Elimination of All Forms of
    Discrimination Against Women (1979) and its Optional
    Protocol (2000).
    Regional conventions for the
    protection of human rights

    O The Council of Europe adopted the European Convention for the


    Protection of Human Rights and Fundamental Freedoms in 1950.
    O the European Convention for the Prevention of Torture and
    Inhuman or Degrading Treatment or Punishment in 1987.
    O The American Convention on Human Rights was adopted in
    1969, under the auspices of the Organization of American States.
    O the Convention to Prevent and Punish Torture (1985), the
    Convention on the Forced Disappearances of Persons (1994).
    O the African Charter on the Rights and Welfare of the Child
    (1990).
    International custom

    O Customary international law plays a crucial role in international human rights law. The
    Statute of the International Court of Justice refers to ‘general practice accepted as law’.
    O In order to become international customary law, the ‘general practice’ needs to represent a
    broad consensus in terms of content and applicability, deriving from a sense that the
    practice is obligatory .
    O Customary law is binding on all states (except those that may have objected to it during
    its formation), whether or not they have ratified any relevant treaty.
    O One of the important features of customary international law is that customary law may,
    under certain circumstances, lead to universal jurisdiction or application, so that any
    national court may hear extra-territorial claims brought under international law.
    O Many scholars argue that some standards laid down in the Universal Declaration of
    Human Rights (which in formal terms is only a resolution of the UNGA and as such not
    legally binding) have become part of customary international law as a result of subsequent
    practice; therefore they would be binding upon all states. Within the realm of human rights
    law the distinction between concepts of customary law, treaty law, and general principles
    of law are often unclear.
    Subsidiary means for the
    determination of rules of law
    O According to Article 38 of the Statute of the International Court of
    Justice, judicial decisions and the teachings of the most qualified
    publicists are ‘subsidiary means for the determination of rules of law’.
    Therefore, they are not, strictly speaking, formal sources, but they are
    regarded as evidence of the state of the law.
    O As for the judicial decisions, Article 38 of the Statute of the International
    Court is not confined to international decisions (such as the judgements of
    the International Court of Justice, the Inter-American Court, the European
    Court and the future African Court on human rights); decisions of national
    tribunals relating to human rights are also subsidiary sources of law.
    O The writings of scholars contribute to the development and analysis of
    human rights law. Compared to the formal standard setting of
    international organs the impact is indirect.

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