Inter Protection of Human Rights

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Internationalprotection of

human rights

Adam Gearey

2006

LLB 2660029


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2 University of London External Programme

This subject guide was prepared for the University of London External

Programme by:

Adam Gearey, Senior Lecturer in Law, Birkbeck College, University of London.

This is one of a series of subject guides published by the University. We regret

that owing to pressure of work the authors are unable to enter into any

correspondence relating to, or arising from, the guide.

With thanks to the author of the 2004 edition, Professor Rebecca Wallace.

If you have any comments on this subject guide, favourable or unfavourable,

please use the form at the back of this guide.

Publications Office

The External Programme

University of LondonStewart House

32 Russell Square

London WC1B 5DN

United Kingdom

www.londonexternal.ac.uk

Published by the University of London Press

University of London 2006

Printed by Central Printing Service, University of London.

Cover design by Omnis Partners, Glasgow

All rights reserved. No part of this work may be reproduced in any form, or by any means, withoutpermission in writing from the publisher.


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University of London External Programme 3

Contents

Chapter 1 Introduction 5

Chapter 2 International law and human rights 13

Chapter 3 The nature of human rights 45

Chapter 4 Human rights and the international legal order 77

Chapter 5 The UN system for the protection and

enforcement of human rights 105

Chapter 6 The human rights of women 139

Chapter 7 The rights of the child 169

Chapter 8 Race and rights 193

Chapter 9 The rights of refugees 219

Chapter 10 Torture, terrorism and the rule of law 251

Chapter 11 Humanitarian law, crimes against humanity

and genocide 275

Chapter 12 Military intervention and human rights 315

Chapter 13 The European system for the protection of

human rights 329Chapter 14 The Inter-American system for the protection

of human rights 357

Chapter 15 Human and peoples' rights in the African system 387


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Chapter 1 Introduction

Contents

Introduction 51.1 Studying the international protection of human rights 61.2 Approaching your study 81.3 The examination 9

IntroductionThis subject guide acts as a focal point for the study of the

international protection of human rights (IPHR) on the external

LLB. It is intended to aid your comprehension by taking you

carefully through each aspect of the subject. Each chapter also

provides an opportunity to digest and reviewwhat you have

learned by allowing a pause to think and complete activities. At the

end of each chapter there are sample examination questions

to attempt once you have completed the further reading.

You will find that the course ties in closely with the numerous

social, political and economic issues which are occurring

throughout the world, and keeping in touch with these is obviously

essential. The initial learning period will be greatly eased if you

understand the context within which international events with a

relevance for human rights take place. All of the major national

newspapers cover IPHR issues. If you are not able to read them

daily, you will find that the weekend issues of the quality UK

newspapers will have a roundup of many issues with a significance

for IPHR. A knowledge of these events is certain to stimulate your

enjoyment of human rights law!

Learning outcomes

By the end of this chapter and the relevant reading, you should be able to:

approach the study of IPHR in a systematic way

understand what the various elements of the text are designed to do

begin your study of IPHR with confidence.


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International protection of human rights


1.1 Studying the international protection ofhuman rightsHuman rights can be the most exciting and inspiring of all areas of

law. It can also be the most frustrating. The inspiring quality of

human rights comes from their promise: to protect human beingsfrom arbitrary and tyrannical power. Human rights can also be

disappointing because the reality of rights falls so far from this

ideal. In fact, the more one engages with human rights, the more it

becomes clear that commitments made to human rights by

governments are frequently empty rhetoric. It is always easier to

accuse ones opponents of human rights abuses than it is to put

ones own house in order. The international agencies dedicated to

human rights offer some source of hope but they can also appear

bureaucratic and powerless against those governments that have

the political will to flout them. Given the secrecy of a great deal of

human rights enforcement mechanisms, it is also difficult to assesstheir effectiveness.

Another issue worth confronting from the very beginning is the

central tension of human rights. The present mechanisms of rights

protection rely on sovereign states. However, sovereign states are

precisely those bodies that human rights limit. Indeed, we will see

that in the early years of the UN, the commitment of governments

to the idea of international human rights was somewhat lukewarm

for this reason. They did not want to lose sovereignty over 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

international commitment to the Universal Declaration and the

other covenants and treaties that we will examine, 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 in place to achieve the necessary reforms. The

issue of how nations are forced to honour their human rights

commitments is complex and relates to broader issues in

international politics. In the Cold War, human rights were often

presented as an ideological foil to communism, and abuses were

highlighted in those nations that were aligned with the Soviet blocrather than the Free World. 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 processes remains.

One of the most pressing issues here is the war on terror and the

invasion and occupation of Iraq. The coalition of the willing is re-

defining human rights law in diverse ways. Perhaps the most

obvious challenges presented are in the areas of torture and the

justification of military intervention, which we will study in detail.

However, the war against terror is impacting on the international

politics of human rights in ways that are perhaps less obvious.

Maintaining the coalition of the willing means turning a blind eye

to human rights abuses amongst partners in the alliance orallowing other nations to extend their spheres of influence in

exchange for their acceptance of military intervention in the

ongoing campaign against the terrorists.


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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 bewildering in studying human

rights is the proliferation and overlap between different treaties

and covenants within the UN system. There are also distinctions

between the UN system and the three regional systems: the African,

the European and the Inter-American. This, in part, reflects the

incremental development of human rights law. At its most technical

human rights law seems to be dedicated towards showing that the

principles and rules in these different systems either are, or are not

coherent and consistent. At worst this can miss the broader political

issues that are inseparable from human rights.

This guide attempts to deal with both the technical and the political

features of human rights. Each chapter attempts to put rights into

their political, social and economic contexts, as well as showing

where human rights principles are found, and how these principles

relate to each other. It would be difficult in this opening section to

try to give an overview of the politics of human rights, or even thedifferent areas of human rights that we will be examining.

However, it is worth remembering that a thorough understanding

of human rights demands an awareness of the political, social and

economic contexts in which human rights operate, as well as the

principles of human rights. For instance, we will see that the

commitment to childrens rights in Indian law can mean very little

at ground level, where these rights are not enforced, and old

employment practices remain in place.

Finally, it is also worth noting that the very idea of international

human rights law may be something of a misnomer. We will see

that many of the enforcement mechanisms cannot be understood ina narrowly legal way: i.e. as making for remedies that are enforced

by courts. International human rights provisions can become law,

but one has to bear in mind that human rights enforcement is, at

times, closer to a system of regulation or soft law than it is to law.

Furthermore, the very approach to dispute resolution on the model

of remedies tends to individualise conflicts that are, in their nature,

communal. Obtaining justice for an individual may not mean

resolving the reason for his/her human rights abuses in the first

place. For someone educated in law, with a set of expectations

about how courts operate, this may prove perhaps more of a

conceptual block than, say, someone approaching this area from a

politics or a sociology background. The challenge for the lawyer isin acknowledging that the rulebook may be largely meaningless in

protecting human rights when political work is necessary: lobbying,

negotiating and building alliances.

This guide intends to present an overview of international human

rights law. It is not necessary that you should know everything that

is covered in this text. The best approach is to achieve your own

general understanding of the subject, and then to focus on the

areas that interest you the most, and bearing in mind the subjects

that you are going to revise for the exam.


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1.2 Approaching your studyThis guide is designed to be your first reference point for each topic

covered on the course. Read through each chapter carefully. The

activities occur at points in each chapter where you need to pause

and digest the information you have just covered. That means youshould stop and think about what you have just learned. Use the

activity at this point to aid your reflection. Read it and think

generally about the issues it is trying to address.

Feedback on most of these activities is provided at the end of the

chapters, but try not to read the feedback immediately. Do this

throughout the chapter and when you have completed the chapter

move to the essential reading. After this give yourself some time to

think about what you have learned or if things are unclear you may

need to read over certain points again. Once you have read the

chapter and the essential reading, attempt in writing the activities

in each chapter. Use them as an opportunity to test yourunderstanding of the area. At this point read the feedback provided

to see if you are on the right track. Once you have completed this,

move to the further reading. Again after completing the further

reading give yourself time to think and re-read. Finally, you should

attempt the sample examination question at the end of each

chapter.

Go through the guide in this way, covering each chapter in turn.

Each chapter builds up your knowledge of the subject and so

dipping into the guide as you feel like it will not work. Later

chapters presume you have covered and understood the earlier

ones. As we explain below you will also have to monitor casedevelopments, reform initiatives and seek out new IPHR writing to

flesh out your understanding of the subject and develop your

independence of thought.

1.2.1 Essential reading

Primary textbook

Steiner, H. and P. Alston International human rights in context,. (Oxford:

Oxford University Press, 2000) second edition [ISBN: 0198298498].

This subject guide is centred on this textbook. References in the text

to Steiner and Alston are references to this textbook.It is your essential reading, so much of your study time should be

taken up reading the textbook, though you will also have to study

numerous case reports, complete the further reading and keep up

to date with academic IPHR writing.

Other texts to consult

Gardiner, R.K. International Law. (Harlow: Longman, 2003)

[ISBN 0582369762].

Wallace, R.M.M. International Law. (London: Sweet and Maxwell, 2005)

fifth edition [ISBN 042188410X].

Legal journals

A good student is expected to be familiar and up to date with the

latest articles and books on this subject. International protection of

human rights articles often appear in the UK law journals:


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Modern Law Review (MLR)

Oxford Journal of Legal Studies (OJLS)

Journal of Law and Society (JLS)

Law Quarterly Review (LQR)

Cambridge Law Journal (CLJ).

It is essential that you keep up to date with developments reportedin these journals. Specific dedicated human rights journals are also

very useful, for exampleEuropean Journal of International Law.

Course reader

Other useful background reading is provided in your IPHR Course

Reader, and on the Laws website

(www.londonexternal.ac.uk/current_students/programme_resourc

es/laws/index.shtml). These items are reproduced under a licence

form the Copyright Licensing Agency, and you should respect the

terms of the license as explained in the Reader.

1.3 The examinationImportant: the information and advice given in the following

section is based on the examination structure used at the time this

guide was written. However, the University can alter the format,

style or requirements of an examination paper without notice.

Because of this, we strongly advise you to check the instructions on

the paper you actually sit.

Although there are many ways to achieve examination success the

following is our advice on how to deal with IPHR law examinations.

1.3.1 Preparation

No amount of last-minute study will solve the problem of a lack of

preparation. You must begin your examination preparation from the

first day the course begins. Using this guide as a starting point

take careful condensed notes of everything you read. When you have

finished a section identify and write down a list of the key points that

will act as a memory trigger for you when you return to that section

again. While the sample examination questions in this guide are a

good way to practise, you should go beyond this and practise

answering old LLB examination questions. Be disciplined about this

exercise by pretending you are doing it under examination conditions.Give yourself only 45 minutes to answer each question, including

reading and planning time.

You should plan out each week of studyin advance using a

diary allowing at least two hours of studyfor IPHR each week.

You should also allow time for a review of the weeks work and at

the end of the month allow some time for a wider review of what

you have achieved in the preceding month. Remember that

examinations are not intended to be an accurate assessment of your

knowledge of IPHR law. They are a test of your ability to answer

certain questions on IPHR on one particular day in one particular

year. As such you need to learn and revise constantly over that yearto give yourself the best chance of performing on the day. You also

need to be physically and mentally well so make sure you do not

overwork; eat well and include social and physical activities in your

weekly schedule.


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Three months before the examination you should draw up

an examination revision schedule. At this point you should have

been working consistently and have a good set of notes to revise

from. You will now need to decide what subjects you will revise for

the examinations. This needs careful thought; many students only

revise the bare minimum number of questions, which leaves them

vulnerable to one or more of these areas not being on the

examination or one or more of the areas being combined in onequestion. It also means the student has little choice even if all four

areas come up. One or all of them might be very difficult questions

while the other four questions on the paper are easy. For these

reasons if you are well prepared at this point you should plan to

revise a minimum of six areas but if you wish to be more cautious

(there are still no guarantees) revise at least eight areas for the

examination after carefully going over the previous examination

questions. Again include time in your examination revision

schedule for practising old examination questions under

examination conditions.

1.3.2 On the day of the examination

If you can, take the night before the examination off and do

something relaxing. If you have to revise the night before make

sure you finish at a reasonable time and get a good nights sleep.

On the morning of the examination go over your revision notes

briefly then put them away and go to the examination without

them. You dont need them now if you have done the work, so just

try to relax before the examination. Give yourself plenty of time to

travel to the examination as you dont need any extra stress on the

day.

When the examination starts you will usually have to answer fourquestions from eight. Read the whole paper question by question

very carefully and then decide which questions to attempt. Do not

just pick your favourite topic: try to evaluate whether another

question is easier to answer even if it is not your favourite topic.

Remember, you are trying to maximise your marks. When you have

decided which questions to do, draw up a brief plan of how you

will answer each question. Then once you have done this you

should begin answering the first question.

Timing is very important here: divide up the total allowable

examination time into time for reading and planning (5 minutes

each question) and time to write the answer (usually 40 minutes).Remember to stick rigidly to this that means you stop writing

immediately the 40 minutes writing time you have allotted is up. If

you do not you are throwing marks away. Few students understand

this but it is much harder to squeeze marks out of a question you

have been answering for 40 minutes than from a new question. By

the time 40 minutes is up you will have probably got all the easy

marks, and all that is left are the difficult marks. It is much better to

stop and start on a new question where there are still lots of easy

marks to pick up.


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1.3.3 Answering the question

You will by now be sick of being told that your number one aim in

the examination is to answer the question. You are told this

constantly both because it is true and because failing to abide by

this simple rule is the number one cause of failure in examinations.

So take this advice seriously at every point in the examinationyou must ask yourself whether you are answering the question.

Remember you are almost never asked in an examination to

provide a general description of an area of law or provide an

overview of the various arguments for or against a particular point

of view. Lawyers argue, and thats what it is all about not

unsubstantiated opinion but reasoned argument recognising

weakness and strength in your own and the opposing argument but

nevertheless arguing consistently for a particular point. The

examination format seems to make students forget this.

In general you will encounter two distinct types of questions,

problem and essay. Problem questions are relativelystraightforward you simply apply the law to the facts of the

question. To do this you look to see what you are being asked in the

question this will help you decide what facts are relevant. For

example if you are asked to advise the Rapporteur then only

information which impacts on the Rapporteur will be relevant. You

then go through each line of the question drawing out the relevant

facts, applying the law to it and answering the question. Essay

questions cause more difficulty as they provide more scope for a

general discussion which fails to answer the question. Never, ever,

read an examination question, identify it as a particular area e.g.

Salomon or veil lifting and then simply write an essay covering all

you know about Salomon or veil lifting. You will fail. Read the

question, identify the area and analyse the question. Break it down

into its constituent parts, and really think what am I being asked

here? and how can I best answer?. When you decide this try using

the words of the question in your first sentence as a discipline to

focus yourself on answering the question.

For example in Chapter 5 you will find the following examination

question:

Before one assesses the effectiveness of the UN system for the enforcement of

Human Rights, one has to be clear about the meaning of enforcement.

Discuss.

You should note that it is not actually a question, rather it is a

challenging statement followed by an invitation to discuss it. The

challenge is in the difficult question of enforcement. This type of

question is often interpreted by students as an invitation to

generally discuss the principle of the UN system for human rights

but it is not. You are being asked to argue for or against this

statement, which focuses on enforcement. It does not matter

whether you argue for or against it as long as you substantiate your

argument with cases, treaties, actions of states, UN resolutions, and

academic commentary and are consistent. So in answering thisquestion you should start your essay using the words of the

question to indicate what you are going to argue. For example:


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This answer will show that it is indeed necessary to be clear about the

meaning of enforcement before assessing the UN system for enforcing

human rights.

It is not enough to just do this and then provide a general description

of the area. You must follow the argument through to the end,

identifying weaknesses and strengths but holding firm to your

argument. If things are uncertain, as international law often is, then

identify the uncertainty and give your substantiated opinion as to

which course the law should take. All the time asking yourself: am I

answering the question? Remember as well that an essay question has

a beginning(where you introduce your argument), a middle

(where you set out the detail of your argument) and an end (where

you conclude by repeating briefly your argument). Always follow this

format, as it will help you focus on your argument.

Reminder of learning outcomes

By this stage you should be able to:approach the study of IPHR in a systematic way

understand what the various elements of the text are designed to do

begin your study of IPHR with confidence.

Good luck!

Adam Gearey, May 2006


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Chapter 2 International law and human

rights

Contents

Introduction 132.1 A brief history of international law 152.2 The nature of international law 162.3 International law, human rights and domestic law 272.4 What is the status of the Universal Declaration of Human

Rights in international law? 302.5 Why do nations obey international law? 362.6 A note on the individual in international law 38

IntroductionWhat follows is a crash course in international law.

In academic life many lawyers refer to an entity described as

international human rights law which is assumed to be a separate

body of norms. While this is a convenient category of reference, it is

also a source of confusion. Human rights problems occur in specific

legal contexts. The issue may arise in domestic law, or within the

framework of a standard setting convention or within general

international law. But there must be reference to the specific and

relevant applicable law. There is thus the law of a particular state,

or the principles of the European Convention on Human Rights

[ECHR], or the relevant principles of international law. In the real

world of practice and procedure, there is no such entity as

international human rights law and, when this concept is imposed

on students, it can only be a source of confusion

(Brownlie, I.Principles of Public International Law. (Oxford: Oxford

University Press, 2003) sixth edition [ISBN 0199260710] p.530.)

Brownlie makes a number of interesting points in this passage.

First, that international human rights law is not separate from the

general norms of international law. The reference to human rights

is just a useful way of classifying a body of material. Secondly, that

specific human rights issues may bring together both international

law and domestic law.

In this chapter we will show that a study of international human

rights law has to begin with an understanding of the generalprinciples of international law. To this end, we will identify the

peculiarities of international law, identify its sources, and show

how they relate to the protection of human rights.


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Learning outcomes

By the end of this chapter and the relevant readings you will be able to:

identify the sources of international law

explain the relationship of international law and domestic law

understand the relationship between international law, domestic law and

the international law of human rights.

Essential reading

Brownlie, I. Principles of public international law. (Oxford: Oxford University

Press, 2003) sixth edition [ISBN 0199260710].

Steiner, H. and P. Alston, International human rights in context, Chapter 2:

Up to Nuremburg: background to the human rights movement pp.126

135, Chapter 3: Civil and political rights pp.224235. (Oxford: Oxford

University Press, 2000) second edition [ISBN 0198298498].

Other useful reading

Steiner and Alston provide useful readings on the background of

international law in Chapter 2: Up to Nuremburg: background to the human

rights movement on pp.127135.

The article by Henkin summarised in this section concerns the issue of the

individual in international law. Schachters article analyses the nature of

international law, and argues that it must be seen as the product of historical

experience in which power and the relations of forces are determinants

(Steiner and Alston p.131). It is worth bearing in mind Schachters argument

when we review the sources of international law in the section below. Although

this kind of analysis can describe the structure of the law, it must be connected

with a broader analysis of the politics of international law, if we are to achieve a

sophisticated understanding of the subject.

Activity 2.1

Examine a selection of the weeks newspapers and pick out three reports which

demonstrate the nature of the international legal system. What questions do they

raise?

No feedback provided.


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Chapter 2 International law and human rights


2.1 A brief history of international lawWestern political thought has repeatedly returned to the notion of a

just international order. Thus, the medieval Christian tradition

affirmed a set of fundamental values that would bind all nations. In

the succeeding early modern period, these themes were revisitedand revised. The Dutch scholar Hugo Grotius (15831645) is often

seen as one of the major figures in the articulation of the principles

of international law. InProlegomena (1625)1 Grotius asserted that

the relationships between states should be regulated:

I saw in the whole Christian world a license of fighting at which

even barbarous nations might blush. Wars were begun on trifling

pretexts or none at all, and carried on without any reference to law,

Divine or human.

There are, of course, other important figures in the early history of

international law, but, equally significant, are political

developments. The Treaty of Westphalia (1648), created a network

of sovereign states with formal equal standing. International law

was born out of a need for states to co-operate with each other and

the need for co-operation increased as states had greater and more

regular contact. The earliest contact states had was when one state

sent a representative to another in other words diplomatic

relations were established. The other occasion when states had

contact was when they were at war with each other. Rules were

required to regulate such dealings, and what states agreed between

themselves was what became international law. Thus the earliest

expression of international law were norms that reflected the

practices of states. These became known as customaryinternational law.

Martti Koskenniemi provides a useful overview of the changes that

occurred in the nineteenth century:

Since the Vienna Congress of 181415 and the defeat of Napoleon,

the relations between European powers were no longer built on one

powers search for primacy but on a general pursuit of the

maintenance of the balance of power, guaranteed by complicated

legal procedures and alliances. As contemporaries increasingly saw

Europe as a system of independent and equal political communities

(instead of a respublica Christiana) they began to assume that the

governing principles needed to become neutral and objective thatis, legal. (Koskenniemi, M. The politics of international law.EJIL

1(1) 1990 http://www.ejil.org/journal/Vol1/No1/art1.html)

The period that we are concerned with in this book is much later

than the developments that Koskenniemi is describing. International

law expanded in terms of both content and participants during the

second half of the twentieth century. It began to concern itself with

a diversity of matters that went far beyond diplomatic relationships

and war. This is reflected in the number of participants now on the

international scene. This includes not only states, but international

organisations such as the UN, the WTO, the World Bank and the

IMF. If we look only at one of these international organisations, the

UN, we can see that it has become increasingly important. UnitedNations (UN) membership has increased from 50 in 1948 to 191 in

2002 (Switzerland joined on 10 September 2002 and Timor-Leste

(East Timor) was admitted on 27 September 2002).

1 Grotius, H.Prolegomena to the

Law of War and Peace. (London:

Macmillan, 1957)

[ISBN 0672602407].


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The political events that lie behind these facts and figures relate to

the reconstruction of the international community in the period

after the Second World War. This post-1945 period was marked by

liberation struggles against European empires, and the polarisation

of power blocs brought about by the Cold War. With the ending of

the Cold War and the tensions brought about by the war against

terrorism and the acute division of the world into developing and

developed nations, international law is entering a period ofimmense change and trauma. For instance, the NATO bombing of

Belgrade (2001), Operation Desert Storm and the first Gulf War

(1991), the US invasion of Afghanistan (2001), the 2003 Gulf War

and invasion of Iraq all raise issues of the legality of intervention in

international law. We may be witnessing a transformation of

international law, as Western powers seek to justify wars fought to

protect human rights, and a right to intervene to prevent the use of

weapons of mass destruction.

Activities 2.22.4

2.2 Why is the work of Hugo Grotius important to the development of

international law?

2.3 Outline the changes in international law in the nineteenth century, as

described by Koskenniemi.

2.4 What recent events are having an impact on the development of international

law?

Feedback: see page 42.

2.2 The nature of international lawIf we are to understand the international law of human rights, we

need to understand how international law operates. This is

demanding as international law does not resemble the national

legal systems with which most law students are familiar. In this

section we will address the nature of international law, and then

turn to review the sources of law.

The following extract details the difficult characteristics of

international law that one has to face:

The area of law which has the most justifiable claim to the descriptioninternational law is general international law. Because there is no

authoritative lexicon of international law terms, there is no general

agreement as to the content of international law. For some this is a

synonym for customary international law. For others, the term

includes all international law that is not confined to the application in

the relations of some states only. Thus the most obvious excluded

category is treaties; but (somewhat confusingly)some treaties do

state general international law. Conversely, some (exceptional and

few) customary rules are said to be regional and thus less than

universal.

Gardiner, R.K.International Law. (Harlow: Longman, 2003)

[ISBN 0582369762]p.98.


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One would not be able to describe a domestic legal system in these

terms. Although there is a degree of uncertainty over the law in

domestic legal systems, there is perhaps not this radical disturbance

of key concepts. We also have to observe that the foundational

principles of international law are different from those of domestic

law. For instance, one of the most important subjects 2 of

international law is the nation state. International law can be seen,

in part, as an account of the rights and duties of states. This system

of law cannot be understood through an analogy with domestic

law, where citizens have rights and duties that can be enforced by

domestic courts.

Thinking about the role of the courts can provide another contrast

between domestic law and international law. Although one could

speak of a court with jurisdiction over international law, one would

have to be careful to explain what one meant in making this claim.

The International Court of Justice [ICJ], based at The Hague, does

act as a world court, but we need to be precise about its role.

Created in 1945 by the Charter of the UN (the Statute of the Court

is considered an integral part of the Charter), the ICJ is the

principal judicial organ of the UN. The Court has the jurisdiction to

decide disputes of a legal nature submitted to it by States in

accordance with international law. It can also deliver advisory

opinions. The jurisdiction of the Court is based on a nation

submitting itself to the Court by signing the UN Charter. This is, of

course, very different from the jurisdiction of a domestic court. An

individual does not consent to become a subject of the law.There are other important differences between the judgments of

national courts and the judgments of the ICJ. A judgment of a

national court is binding on the parties to the action. But sovereignstates cannot be thought of as litigants before a national court. The

binding nature of the ICJs decisions is provided for by Article 59 of

the Statute of the Court. But, why do states obey the ICJ? Because

states would not have submitted a case to the ICJ unless they had

already consented to the judgment of the Court. If a decision is not

implemented then a state, whether a member of the UN or not, can

lay the matter before the Security Council. Under Article 94 of the

Charter, the Security Council can decide on appropriate measures

to give effect to the ICJs judgment.

It is also worth noting that the ICJ does not follow a system ofstare

decisis. A common lawyer might conclude that this is the reasonwhy international law lacks clarity! However, the ICJ does attempt

to remain consistent with its previous decisions. We will return in a

moment to the issue of how the ICJ develops international law.

Activities 2.52.6

2.5 Characterise international human rights law.

2.6 Why is international law different from domestic law?


2 Those entities capable of

possessing international rights

and duties and having the

capacity to maintain their rights

by bringing international claims

see Brownlie, p.58, citing

Reparations for Injuries Case, ICJ

Reports (1949), 179. This

definition, like most concepts in

international law, is open to

dispute.


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Self-reflection

Why does the ICJ not follow stare decisis?

2.2.1 The sources of international law

We need to turn from these issues to the sources of internationallaw. As we have seen, Gardiner casts doubt on the clarity of these

sources. However, as we progress we will determine the major

sources of international law and clarify the relationships between

them.

How can we approach the sources of international law? A useful

starting place is Article 38, paragraph 1, of the Statute of the Court

which, in declaring the Court's function to decide disputes in

accordance with international law, goes on to detail the sources of

international law:

(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 not complete. It does not include unilateral acts of

international law, nor the decisions and resolutions of international

organs. Neither does it make reference to principles of equity and

justice, to which the Court can make reference and which arefundamental to its role as a tribunal. The list also does not refer to

soft law. Soft law can be thought of as a generic term used to

describe non legally binding international instruments. The term

embraces a number of different documents. It covers treaties (legal

soft law) that contain general obligations and non-binding or

voluntary resolutions. Soft law can describe statements of intent

and codes of conduct produced by international and regional

organisations. The term also covers statements by individuals; for

example groups of eminent international lawyers purporting to

articulate international principles (non-legal soft law). [See

Chinken, C.M. (1989) The challenge of soft law: development andchange in international lawICQL 38 1989, pp.850866.]

Personal agreement can also be seen as falling within soft law. One

example of this kind of soft law would be the oral gentlemans

agreement on the regional distribution of seats in the UN Security

Council made in London in 1945. Personal agreements can be

understood as pledges made by ministers on the strength of their

reputation, and are not binding on the nation they represent or

their successors in office. Inter-agency agreements could also be

included in this category, and are binding on the agencies

concerned. Finally, soft law could also describe obligations made in

treaties that are so vague as to be unenforceable. (Hilgenburg, H. Afresh look at soft lawEJIL 10 1999, pp.499515.)


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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.

Activity 2.7

What are the sources of international law? Why is this an important issue for theinternational protection of human rights?


2.2.2 Treaties

Gardiner excludes treaties from general international law. This

might seem counter-intuitive. One would have thought that

international treaties would provide the paradigmatic instance of

nations committing themselves to binding obligations. Gardiners

point is that treaties only create rights and duties for those who aresignatories. If we are concerned with a source of law that is

universally binding, then we would need to look beyond treaties to

the norms of customary international law.

The principal treaties

The main treaties for our purposes are:

the Convention on the Prevention and Punishment of the Crime

of Genocide 1948

the UN Covenant on Civil and Political Rights 1966

the Covenant on Economic Social and Cultural Rights 1966the Convention on the Elimination of All Forms of Racial

Discrimination 1966

the Convention on Elimination of all Forms of Discrimination

against Women 1979

the Convention against Torture, Cruel, Inhuman or Degrading

Treatment or Punishment 1984

the UN Convention on the Rights of the Child 1989

Foundational Statute of the International Criminal Court

the Hague and Geneva Conventions

the African Charterthe European Convention on Human Rights

the American Convention on Human Rights.

Definition of a treaty

A treaty is defined in the Vienna Convention on the Law of Treaties

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 theVienna Convention would not apply)

between states

governed by international law.


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It should be noted that treaties can be either between two states or

parties (bipartite or bilateral) or between a number of states or

parties (multipartite or multilateral).

States which are party to a treaty are referred to as Contracting

Parties. States not party to a treaty are referred to as non-

Contracting Parties.

International treaties and customary law

Do not think that international treaties and custom exist

independently of each other. We can only glance at some of the

issues that are important in this area. Judge Sorenson in his

dissenting opinion in theNorth Sea Continental Shelf Cases 1958

said:

Although theoretically clear and distinguishable, the two notions

(treaty and custom) tend in practice to overlap or to leave between

them an intermediate areaThe very act of formulating or restating

an existing customary rule may have the effect of defining its

contents more precisely and removing such doubts as may have

existed as to its exact scope or the modalities of its application. Theopportunity may also be taken of adapting the rule to contemporary

conditions, whether factual or legal, in the international

community. On the other hand, a treaty purporting to create new

law may be based on a certain amount of State practice and

doctrinal opinion which has not yet crystallised into customary law.

There is thus a complex relationship between treaties and

customary law. We will look at this issue in detail when we

examine the legal status of the Universal Declaration of Human

Rights. However, we can touch on some of the broader issues in

this section.

Treaty law will normally supersede previous contrary customaryinternational law. Generally it can be said that in the event of

inconsistency, whichever is the most recent be it custom or treaty

prevails as between the same parties. Parties to a treaty may

agree to adhere to the treaty obligations even in the light of

subsequent general custom. Nevertheless, though modification of

customary law by treaty is common, there are few instances of rules

of customary law developing in conflict with earlier agreements. In

such cases, the principle that the latest in time prevails will be

applied on the presumption that the parties to the treaty have

implied their consent.

Further elaboration of these principles can be found in the ViennaConvention on the Law of Treaties. Article 53 provides that:

A treaty is void if, at the time of its conclusion, it conflicts with a

peremptory norm of general international law. For the purpose of

the present Convention, a peremptory norm of international law is 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.

Article 64 is also important. It states that:

If a new peremptory norm of general international law emerges,any existing treaty which is in conflict with that norm becomes void

and terminates.


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International treaty law is normally a reflection of what has been

agreed and followed as customary international law. Treaty law can

also lead to the evolving of international customary law as states

not parties to the treaty follow the conduct laid down in the treaty.

In other words, what is contained in the treaty can mould and

influence the conduct of non-Contracting Parties.

2.2.3 Reservations

A reservation is defined in Article 2(1)(d) of the Vienna Convention

on the Law of Treaties as:

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.

Traditionally, it was maintained that a reservation could only be

inserted if all contracting parties to the treaty consented. In the

absence of unanimous agreement the reservation was null and

void. However, with the increase in the number of states and the

simultaneous growth in the complexity of treaty subject matter,

achieving the concurrence of all the states involved became a

problem. What was required, if states were not to reject completely

treaties which contained a particular provision to which they took

exception, was a more flexible approach to reservations. The

Advisory Opinion requested in respect of theReservations to the

Convention on Genocide [ICJ Rep 1951 15] case heralded the

necessary change in approach:

The Court was of the view that a state, making a reservation to which

one or more, but not all parties to the Convention, had raised an

objection, could be regarded as a party to the Conventionprovided

[emphasis added] the reservation was compatible with the object and

purpose of the Convention. As to the effect of a reservation between

the reserving state and (i) those objecting and (ii) those accepting the

reservation, the Courts response was:

(a) that if a party to the Convention objects to a reservation which it

considers to be incompatible with the object and purpose of the

Convention it can in fact consider that the reserving state is not a

party to the Convention

(b) that if, on the other hand, a party accepts the reservation as being

compatible with the object and purpose of the Convention, it can in

fact consider that the reserving state is a party to the Convention.(Wallace, R.M.M.International Law. (London: Sweet & Maxwell,

2005) Chapter 10: The law of treaties, pp. 235236.)

It should be noted that the Courts decision, in the Genocide Case,

was only an opinion; however, the effect of the Courts opinion was

to open the door for a number of different legal relationships

between Contracting Parties to the same treaty, a position which is

reflected in Article 19 of the Vienna Convention on the Law of

Treaties. Here the Convention:

allows reservations unless:

(a) the reservation is prohibited by treaty; for example Art. 64 of

the European Convention on Human Rights prohibits reservations

of a general character

(b) the treaty provides that only specified reservations which do not

include the reservation in question, may be made; or


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(c) in cases not falling under sub-paragraphs (a) and (b), the

reservation is incompatible with the object and purpose of the

treaty.

Incompatibility with the object and purpose of the treaty can relate

either to substantive provisions of the treaty, or to the nature and

spirit of the treaty. (Wallace, p. 236) 3

It is important to remember that all treaties are to be interpreted in

good faith in accordance with the maximpacta sunt servanda. This

creates an obligation on states once they have signed a treaty to

refrain from conduct which would defeat the object and purpose of

the agreement (Vienna Convention, Article 18).

Activities 2.82.10

2.8 Why are treaties an important source of human rights law?

2.9 What is the relationship between customary law and law stated in a treaty.

Why could this be an important question for a human rights lawyer?

2.10 Why is it important that a human rights lawyer should know if a nation has

derogated from a treaty?


2.2.4 Customary law

What is customary law?

Look back at paragraph (b) in Article 38 on page 18 above. The

Article states two essential elements of customary law: a general

practice that is accepted as law, or, opinio juris. There are problemsin defining these terms. Paragraph (c) may be helpful. It refers to

the general principles of law recognised by civilised nations.

We need to define these terms to understand customary law.

Practice: How is it possible to show that a law or a norm has

developed from the general practice of states? Presumably, it would

be necessary to show that a practice had grown up over a period of

time and was accepted by most states.

The nature of customary law can be clarified by reference to the

example of state immunity. The rules of state immunity relate to

the circumstances in which a state can be made a party toproceedings in the courts of other states without its consent. Over

time, the customary rules that regulated this practice changed from

a principle of total immunity, to a more limited position where only

acts of a sovereign nature are covered. This change has been

generally recognised as customary law. Some further light was

thrown on these principles by the decision of the ICJ in theNorth

Sea Continental Shelfcases [1969] ICJ Rep 3:

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 bethat 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. (paragraph 74).

3 See Appendix Oneof Wallace,

R.M.M. and K. Dale-Risk,

International Human Rights:

Text and Materials. (London:

Sweet & Maxwell, 2001)

[ISBN 0421710306]for the text

of the Vienna Convention on

the Law of Treaties; and for a

more detailed examination on

the Law of Treaties see Wallace,

Chapter 10 and the selected

bibliography contained therein.


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It would appear from the reasoning of the court that practice is

established by those states whose interests are most affected, and

that the period of time is not the key factor. However,

commentators suggest that the argument of the court in this case

may not lay down general guidelines. A significant problem

remains in knowing the precise parameters that lay down a

customary rule.Customary rules must also be shown to be obligatory. In the words

of Mendelson, states must feel that they are conforming to what

amounts to a legal obligation (227, cited in Gardiner, 105). If we

leave aside for a moment the qualifier what amounts to a legal

obligation, then the question becomes: how is this sense of

obligation evidenced? We could look at public statements by

diplomats and ministers, arguments made before courts and even

statements given before national law-making bodies. The decision

of the ICJ in the Case concerningMilitary and Paramilitary Activities

in and against Nicaragua (1986) ICJ Rep 14, paragraph 97 is

helpful: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

It is risky to abstract statements from the complex judgment of the

Court, but, this passage could be seen as suggesting a general

guideline which could be used to establish the obligatory nature of

customary rules. A breach of a customary rule should be seen as

such by the states concerned. It should not be viewed as theopportunity to articulate a new rule.

We have insufficient space in this guide to consider other problems

of identification of customary rules. For instance, one particularly

interesting area is the extent to which instant customary law can

be established. Arguments were made in relation to this point in

defence of NATO actions in the bombing of Kosovo in 1999. Might

it be that NATO actions established a new customary rule?

2.2.5 Resolutions and customary law

It could be argued that resolutions of the General Assembly of the

UN aid the development of customary rules. Resolutions are

themselves not necessarily binding statements of law. To the extent

that the nations that are parties to a resolution determine that they

are to have legal effect, then they will become binding. As Gardiner

suggests, the issue of whether or not a resolution is binding

demands analysis on a case by case basis. Whether or not a

resolution assists in the development of customary law also

depends on the nature of the resolution. It may be the case that a

resolution does state customary law, and can indeed become

evidence that a norm is considered to be binding. (We will come

back to this problem when we examine the UDHR.)


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Essential reading

Read Steiner and Alston, pp.224232. The extract from Oppenheim stresses

the fact that the obligations laid down by customary international law are to

some extent vague. Schachters essay analyses UN resolutions and also

stresses that there are disagreements about the nature of this source of

international law. Schachter goes on to engage with the question of the

status of human rights norms. Higgins essay is useful as it reflects upon the

generation international law, and suggests what factors are necessary to

confirm the existence of particular rules and principles.

2.2.6 General principles

What are general principles?

Brownlie provides a useful general description of this source of

international law:

What is clear is the inappropriateness of rigid categorisation of the

sources. Examples of this kind of general principle 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.

(Brownlie, I.Principles of public international law. (Oxford: Oxford

University Press 2003) sixth edition [ISBN 0199260710] p. 19)

It would appear, then, that general principles describe a number of

different concepts. Let us examine one of them to determine how it

might operate.

What is good faith? The ICJ considered this issue in the case of

Elettronica Sicula S.p.A (ELSI) (United States of America vItaly). The

judgment of 20 July 1989, ICJ Reports 1989, p.15 states:

The principle of good faith is, as the Court has observed, one of the

basic principles governing the creation and performance of legal

obligations

(Nuclear Tests, ICJ Reports1974, p.268, paragraph 46; p.473,

paragraph 49).

Arbitrariness is not so much something opposed to a rule of law, as

something opposed to the rule of law. This idea was expressed by

the Court in the Asylum case, when it spoke of arbitrary actionbeing substituted for the rule of law (Asylum, Judgment, ICJ

Reports 1950, p.284). It is a wilful disregard of due process of law,

an act which shocks, or at least surprises, a sense of juridical

propriety.

Good faith is thus a central concept to international law and can be

opposed to arbitrariness. It can be linked to due process as a

controlling concept. It might be possible to suggest, then, that good

faith relates to a necessary feature of legitimate decisions, in that

they cannot be arbitrary. Good faith corresponds to common law

ideas of natural justice, and could thus be seen as a procedural

principle that underlies the law.


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2.2.7 Judicial decisions

Brownlie describes judicial decisions as decisions of international

tribunals. Judicial decisions are not strictly speaking a formal

source, but, in some instances at least, they are regarded as

authoritative evidence of the state of the law. Note that 38 1(d)

describes these as subsidiary means for determining the law.The decisions of international bodies and domestic courts have

been also used to develop the content of international law. In

human rights law this is particularly important as the number of

international and regional bodies dealing with human rights issues

has increased. Likewise domestic courts frequently deal with the

application and interpretation of human rights instruments.

Decisions of a domestic court can thus serve as evidence of a states

position on a particular issue. In the context of human rights law

such bodies include the International Court of Justice (ICJ), the

European Court of Human Rights, the ad hoc Tribunals re

Yugoslavia and Rwanda and the quasi-judicial Human RightsCommittee. A domestic (US-Californian) court decision of note is

that inFilartigavPea Irala in which it was held that torture is

contrary to customary international law.

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 notwithstanding this fact, 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 developmentof international law include:

Reparations for Injuries Suffered in the Service of the UnitedNations, AO, ICJ Rep., 1949 15

theNottebohmCase, ICJ Rep., 1955 4

theAnglo-Norwegian Fisheries Case, ICJ Rep., 1951 116

Legality of the Use by a State of Nuclear Weapon in ArmedConflict 35 ILM 809 (1996).

Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territory(2003-2004)

Two Arbitration Decisions which have contributed to substantiveinternational law are:

Alabama Arbitration Awards Moore 1 Int. Arb 495 (1872)

The Islands of PalmasCase 2 RIAA 829 (1928).

2.2.8 The principles ex aequo etbonoandequity

Article 38 paragraph 2 states that paragraph 1 of that Article shall

not prejudice the power of the Court to decide a case ex aequo et

bono, if the parties agree thereto. To date this provision has not

been applied, but it determines that the Court may decide a dispute

according to the justice of the case providing the parties consent tothis approach. This goes beyond the power of the court to look to

the equity of any given case, and allows the court to go beyond the

limits of the existing law. Thus, as the ICJ commented in relation

to their equitable jurisdiction:


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It is not a matter of finding simply an equitable solution, but an

equitable solution derived from the applicable law.

(Fisheries Jurisdiction, ICJ Reports, 1974, p.33, para. 78; p.202, para.

69.)

2.2.9 Jus cogens

Jus cogens describes certain rules of international law. As Sir GeraldFitzmaurice pointed out:

there are the cases in which overriding rules ofjuscogens produce a

situation of irreducible obligation and demand that illegal action be

ignored and not allowed to affect the obligations of other States

(Fitzmaurice, G. The law and procedure of the International Court

of Justice, 30BYBIL, 1953).

Jus cogens can thus be understood as rules of overriding obligation.

What does this mean in practice? We can make use of a

commentary by Sychold:

At least Arts. II, III and IV of the Genocide Convention, which are

agreed to codify customary international law, therefore represent

jus cogens. This means that no derogation from these provisions is

permissible, so long as the international community of States as a

whole does not develop a new rule. Therefore, to the extent that

any reservations to the Genocide Convention purport to derogate

from the scope or nature of any State's obligations in respect of

genocide, as set out in the core provisions of the Genocide

Convention, those reservations would be void under thejus cogens

doctrine.

(Sychold, M. M. Ratification of the Genocide Convention: The legal

effects in light of reservations and objections, Schweizerische

Zeitschrift fr internationales und europisches Recht, 4/1998,p.551).

So, if rules arejuscogens, they can void any act that is not in

accordance with them. These rules thus express fundamental

values. The ICJ confirmed their existence in theNorth Sea

Continental Shelfcases:

it is characteristic of purely conventional rules and obligations that,

in regard to them, some faculty of making unilateral reservations

may, within certain limits, be admitted; whereas this cannot be so

in the case of general or customary law rules and obligations which,

by their very nature, must have equal force for all members of the

international community, and cannot therefore be the subject of anyright of unilateral exclusion exercisable at will by any one of them

in its own favour. Consequently, it is to be expected that when, for

whatever reason, rules or obligations of this order are embodied, or

are intended to be reflected in certain provisions of a convention,

such provisions will figure amongst those in respect of which a right

of unilateral reservation is not conferred, or is excluded.

(North Sea Continental Shelf, Judgment, ICJ Reports 1969,

pp.3839, para. 63.)

The range of this rule can be further evidenced by the following

quotation:

rules ofjus cogens are of so fundamental a character that, whenparties conclude a treaty which conflicts in any of its clauses with an

already existing rule ofjus cogens, the treaty must be considered

totally invalid. (YILC, 1966, II, p.239, para. 8).


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2.2.10 Judicial writings

Judicial writings are of value in that they may be referred to as a

means of settling a dispute. The impact of writings on the

international legal system has come about through the absence of

either an international executive or legislative body. Writings can

assist in identifying what the law is at a particular time and

additionally writers may highlight issues which are ripe forinternational regulation, e.g. treatment of ones own nationals.

Furthermore, writers/writings can encourage discussion, thinking

about an issue and contribute to the debate on a particular issue

e.g. that on universalismversus cultural relativism (see Chapter 4).

Activity 2.11

How could human rights issues raise concerns about sources of law?


2.3 International law, human rights and domesticlaw

2.3.1 Monism and dualism

The way in which a state accepts international law is a matter

primarily of domestic law. A state may accept international law

automatically as part of its domestic law; in other words, no

implementing instrument is required. This automatic acceptance is

referred to as the monisticapproach. Alternatively internationallaw may only become part of a states domestic law when there has

been a specific legislative measure designed to give internal effect

to that international law. This is referred to as the dualistic

approach. States also may and do adopt a different stance in

respect of different types of international law i.e. a state may

accept customary international law without a legislative measure

and only accept treaty law by way of an implementation measure.

The essence of monism is that international law and domestic law

are inherently part of one coherent system.

The dualist theory holds that international law and domestic law

are derived from two different legal systems that have no contactwith each other and accordingly do not influence each other.

Dualists do not perceive a clash between the two systems and see

each body of law as supreme within its own area. Sir Gerald

Fitzmaurice, one-time judge in the International Court of Justice,

has stepped into this debate and argued that in practice conflicts

between international law and domestic law are conflicts of

obligations rather than conflicts oflegal systems (see Wallace,

Chapter 3, p.36).

How does English law approach international law? It would appear

that there is a dualist approach to the status of international law. In

Trendtex Trading Corporation vCentralBank of Nigeria [1977] QB532, Lord Hoffmann stated:


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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:J H Rayner (Mincing Lane) Ltd vDepartment of Trade

and Industry[1990] 1 AC 418 (theInternational Tin Council case).

Parliament may pass a law which mirrors the terms of the treaty and

in that sense incorporates the treaty into English law. But even then,

the metaphor of incorporation may be misleading. It is not the treaty

but the statute which forms part of English law. And English courtswill 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.

Lord Hoffmann explains that international law only enters into

English law if Parliament so legislates. The relevant statute then

states the applicable law. To be precise, this is not incorporation,

because international law is only made part of English law if the

relevant Act of Parliament so determines. International law binds

the UK at an international level. Parliament may have legislated tohonour obligations made in international law. Alternatively,

Parliament may have shown in an Act of Parliament that there are

derogations or reservations from international obligations. There is,

however, an interpretative presumption that the common law is

interpreted so as to be coherent with international law. However, if

Parliament, or indeed the common law, prevents an interpretation

that makes English law coherent with international law, then the

courts have to follow English law.

This approach is supported by Lord Goff in AttorneyGeneral v

Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, 283:

I conceive it to be my duty, when I am free to do so, to interpret the

law in accordance with the obligations of the Crown under [the

Convention]. But for present purposes the important words are when

I am free to do so. The sovereign legislator in the United Kingdom is

Parliament. If Parliament has plainly laid down the law, it is the duty

of the courts to apply it, whether that would involve the Crown in

breach of an international treaty or not.

The key phrase in Lord Goffs argument is If I am free to do so.

Lord Goffs argument returns to that of Lord Hoffmann. If a judge is

free to interpret English law as coherent with international law he

or she will do so.

These are general principles; how might they relate to human rights

law?

2.3.1 Torture, human rights and the waragainst terrorism

We will now look in detail at some of the concerns expressed

above. We will examine the role played by the 1984 United Nations

Convention Against Torture in a judgment of the Court of Appeal

concerning the Anti-Terrorism, Crime and Security Act 2001 (but

seeA vSecretary of State for the Home Department[2004] UKHL56).


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The appeal concerned the powers of the Home Secretary to deport

those suspected of offences under the Anti-terrorism, Crime and

Security Act 2001. The claimants did not allege that they had been

tortured, rather, that the Secretary of State, in acting under the

relevant section of the 2001 Act, may have relied on material which

had been obtained in other countries where torture was practised.

The claimants were arguing that the Commission set up under the2001 Act to oversee the Home Secretarys decisions should ensure

that such material was not used.

How is international law relevant?

Amongst other legal sources, the claimants made use of the 1984

United Nations Convention Against Torture (UNCAT). Article 4

requires state parties to pass laws that ensure all acts of torture are

criminal offences. Effect was given to that obligation in the law of

England and Wales by s.134 of the Criminal Justice Act 1988. We

can see that English domestic law has thus given effect to the

Convention. But the claimants were also making a broader

argument. They argued that while UNCAT is not part of domestic

law, domestic law should be construed not to be in breach of

UNCAT unless compelled by statute or common law to do so. This

would place a much broader duty on the Home Secretary. The

Court of Appeal did not accept this argument. The Court stated that

it would be against the powers given to the Home Secretary by the

Anti Terrorism Act for the Secretary of State to investigate each

statement to determine whether or not it had been obtained

through torture:

Such a duty with respect to each individual statement is inconsistent,

in this context, with the power to act on suspicion and belief. The

statute requires the Secretary of State, in the interests of nationalsecurity, to form a general and overall view with respect to the

person's continued presence in the United Kingdom. As to the

Commission, it must review the Secretary of State's sources of

information. For the Commission to be involved in deciding upon the

provenance of each piece of information available to the Secretary of

State would be likely to be a detailed and complex exercise. Such a

duty would be inconsistent with a statutory power conferred on the

Secretary of State for a legitimate purpose and would distract from

the overall view which the statute requires when assessing whether

reasonable suspicion and belief were present.

This case suggests just what is at stake in international human

rights law: it relies on domestic legal systems to make sure that

international obligations contained in treaties are given legal form.

However, as in the case above, a national legislature may have

limited or qualified those rights. We thus need to ask a set of

broader questions about the nature of human rights obligations,

and the sense in which they are binding in international law. We

will begin by thinking about the Universal Declaration on Human

Rights, and then return to the issue of human rights and the

sources of international law.


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Activity 2.12

Prepare a short verbal statement on the role played by UNCAT in

the Court of Appeals judgment inA vSecretary of State for the

Home Department.

This is an issue you may also like to discuss and debate with otherstudents.

No feedback provided.

In this case the claimants were arguing that whilst UNCAT was not

part of domestic law, domestic law should be interpreted so as to

be coherent with the treaty. The UK had already acted in certain

areas to make sure that UK law was treaty-compliant, (e.g. by s.134

of the Criminal Justice Act 1988). However, the Court of Appeal

determined that the Anti-Terrorism Act 2001 contains specific

powers that would, in certain circumstances, require the Secretaryof State, in the interests of national security, to form a general and

overall view with respect to the person's continued presence in the

United Kingdom. This may mean that evidence obtained by torture

in other jurisdictions might be used. The Commissions powers were

also to be seen as limited in this respect. The Commission could

make a detailed scrutiny of each piece of evidence that is available

to the Secretary of State. Complexity aside, such a power is not

given by the Act.

2.4 What is the status of the Universal Declarationof Human Rights in international law?In the sections above, we have been thinking about the sources of

international law. We will now turn to consider whether or not the

Universal Declaration of Human Rights 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 somewhat different.

In the final session of the Grand Assembly of the UN, the chair of

the Assembly and representative of the United States, Mrs

Roosevelt stated:[the Declaration] might well become the international Magna Carta

of all mankind its proclamation by the General Assembly would

be of importance comparable to the 1789 proclamation of the

Declaration of the Rights of Man, the proclamation of the rights of

man in the Declaration of Independence of the United States of

America, and similar declarations made in other countries.

We will consider the Declaration in outline, and then address the

question of its binding nature.

2.4.1 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.


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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 arts. 421.

These articles detail civil and political rights and include freedomfrom 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 predicatedon 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 co-operation. 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 to 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 forthe 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


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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.

2.4.2 The legal value of the Declaration

What is the legal status of the Declaration?

Certainly the Belgian representative at the final session of the

Grand Assembly thought that the Declaration had more than moral

value, but this was far from the consensus. As Lauterpacht reports

(Lauterpacht, H.International law and human rights. (London:

Stevens and Sons, 1950) p.398), there was thought to be no

contradiction between the high praise for the document and the

fact that it would not be juridicially binding. As voiced by another

representative in the General Assembly:

In giving our approval to the declaration today, it is of primary

importance that we keep in mind the basic characteristic of thedocument. It is not a treaty; it is not an international agreement. It

is not and does not purport to be a statement of law or legal

obligation. It is a declaration of basic principles of rights and

freedoms, to be stamped with the approval of the General Assembly

by a formal vote of its members, and to serve as a common standard

of achievement for all peoples of all nations.

Inter Protection of Human Rights

Documents

Transcript of Inter Protection of Human Rights