International Human Rights Seminar 2 – Sources of Rights and Nature of them
Reading
Chapter 4 – Sources
IHR has long been seen to have a natural law source typically matched with religious sources
More formal sources spread from the UN Charter in 1945 which adopted the United Nations
Article 38(1) ICK Statute – Things that can be sources of law
The Principle Treaties
UN Charter was the first to guarantee human rights and fundamental freedoms. Quickly led the UDHR
in 1948 which was followed by the 1966 Covenants (The International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)).
These are often referred to as the International Bill of Rights
The International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD)
The Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW)
Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment 1984 (UNCAT)
International Convention on the Rights of the Child 1989 (CRC)
Other subsequent treaties protect children in war and child prostitution, migrant workers and their
families etc
These treaties establish committees who monitor the application of the treaty
ECHR – European Convention on Human Rights with its own court to rule on potential breaches of
Human Rights
Other treaties exist without having such monitoring mechanisms such as the Genocide Convention
(1948)
Treaties are important because they show international cooperation and willing to deal with the issue.
However states only consent to be bound and so some treaties lack international support from many
countries
Revitalizing the Treaty System
Many of the treaties in place are now outdated which could affect the development of International
Human Rights in general, but they are seen as having significant authority so there is a reluctance to
change them
Ways of updating existing treaties:
1) Additional Protocols – Essentially a new treaty that can be introduced. States can choose
whether to become a party to the protocol. Protocols usually either provide for rights not
previously included in the treaty or provide for additional rights to enforce the treaty
2) General Comments – Set out the understanding of the treaty language. Uncertain as a source
of human rights law. Can be relied upon by decision makers but any assertion of legally binding
effect relies upon the consent of states
Customary International Law
Article 38(1) ICJ Statute – Customary International Law as a Secondary form of International Law
Binding upon all states unlike treaties – does have limited exceptions though
ICJ affirm that customary international law has 2 components – a consistent and uniform state
practice in it and the belief that the practice is required by law. Hard to always decipher what
customary international law is though
Behaviours of states defined in UPR (Human Rights Council’s Universal Periodic Review) may assist
this as doesn’t look at specific treaties but at general human rights obligations including customary
international law
Filartiga v Pena-Irala – US Judge to decide if torture was contrary to customary international law (case
was 4 years prior to UNCAT). Judge sought to find international consensus as to whether this was the
case – looked at General Assembly resolutions including UDHR and found evidence of practice in it by
nations
However case drew upon draft treaties that never came into effect (which it shouldn’t do because they
were not agreed on) and states do not always do what they say they do. An example of this is that in
2011 Amnesty International documented cases of torture and ill treatment in at least 98 countries.
In some states such as the UK, treaty law creates rights which can be relied on in national courts if it
has been implemented into law by legislation (Eg Human Rights Act 1998 to the 1951 ratification of
the European Convention of Human Rights)
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