COM 06/2019
The Basic Concepts of Human Rights
By CPG
1.1 Fundamental human rights concepts
Human rights are universal, indivisible, inalienable and interdependent. They are universal because everyone is born with and possesses the same rights regardless of their background, nationality, place of living or status; indivisible because all rights are equally important and cannot be separated from each other; inalienable because all human rights are non-derogable and cannot be removed by any political order; and interdependent because rights – political, civil, social, cultural and economic – are connected and none can be fully enjoyed without the others.
The main distinction between most parts of rights and human rights is that while “regular” rights apply subject to place and time, human rights apply at all times to every human being across the globe. This has been affirmed by Article 1 of the Universal Declaration of Human Rights (UDHR), which states that “All human beings are born free and equal in dignity and rights.”[1] The universality of human rights is a principle proclaimed to ensure and reinforce the weight to be placed on these rights.
However, this principle is not uncontested, and one major criticism that has been mooted against this universality factor comes from cultural relativism, which maintains that universal human rights are neo-imperialistic and culturally hegemonic. The UDHR was drafted before the end of the decolonization process, at a time where numerous developing nations transposed the standards set out in the Declaration in their domestic legislation due to western influence. The content of the rights protected as human rights are strongly influenced by the Western point of view and thus, cannot fit in societies where the cultural values are different, such as Asian societies, as some scholars have argued. Nevertheless, after the Second World War, it was often countries particularly from the Global South that came out of a period of colonialization that called for international human rights which would bind all states and many developing countries were in fact involved in the birth of these rights.
Some parties still argue that cultural diversity challenges the very notion of universality. In its 1991 White Paper, China stated that “owing to tremendous differences in historical background, social system, cultural traditions and economic development, countries differ in their understanding and practice of human rights”. Consequently, cultural relativists state that current human rights principles are the product of the Western liberal tradition and do not encompass notions of wrong and right specific to other cultures, therein making its claim to universality untenable. Indeed, human rights precisely pertain to values that may vary across different cultures. One argument sceptics have presented is how the importance of the community in Asian culture is incompatible with the primacy of the individual, upon which the Western notion of human rights rests.
These arguments however come, more often than not, from governments rather than civil societies and one has to be careful as to their strategic purpose. Individual members of societies or civil-society organizations across the globe often agree with most human rights as it protects them on an individual level. Despite a debate on cultural relativism, it is hard to argue that many of the most basic rights such as the right to not be arbitrarily deprived of your life, the right to a fair trial, the right not to be arbitrarily detained, the right to food and safe water – just to name a few – are not shared globally.
To say that human rights are universal also means that while States have a duty to implement and enforce these rights, States are not the source of human rights. Indeed, human rights are internationally recognized, but the implementation depends on the good will of national authorities who often claim that their traditions and culture conflict with conceptions of human rights. The Asian Values, an ideology developed in the 1990s, are a good illustration of that phenomenon and have been mounted by leaders to oppose what they deem as the Western concept of human rights and to defend their actions. For example, the Foreign Minister of Singapore stated, during the 1993 World Conference on Human Rights, that “universal recognition of the ideal of human rights can be harmful if universalism is used to deny or mask the reality of diversity.“[2] J. Chan similarly argues that the Bangkok Declaration adopted by Asian governments in April 1993 stakes out a distinctively Asian point of view on issues of human rights by reaffirming the notion of universal human rights and their importance while insisting that “they are interpreted in the context of historical, cultural and religious peculiarities”.[3]
All that being said, the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, states that “it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights.”[4] In addition, in 2001 the UNESCO adopted the Universal Declaration on Cultural Diversity which states that “[n]o one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.”[5] Beyond that, scholars have argued that the “Asian challenge” to the idea of universal human rights has been dramatized as a historic confrontation with the West and is a misconceived crude dichotomy. Yet while there seems to be a consensus that acts such as torture, slavery and genocide are unacceptable violations of basic human rights, in other areas, the question remains of who has the authority to decide what political practices should be adopted by societies of different cultures and socioeconomic conditions.
To say that human rights are inalienable means that every human being has human rights, independently of his or her knowledge of it and that it is impossible for an individual to lose his/her human rights for any reason whatsoever. It thus follows that, theoretically, whether an individual possesses human rights does not depend on State recognition of those rights. Thus, what makes human rights inalienable is the fact that nobody should be deprived from his or her human rights and that it does not depend on any domestic authority to recognize them. Even people who have committed atrocities still have human rights. However, even if this is the case, it is still disputed whether one truly is in possession of human rights if supposed human rights are so often and blatantly violated, or if there is no formal or legal recognition of such rights. The deliberative school of thought around human rights conceives of human rights as “political values that liberal societies choose to adopt, for instance, through agreement to the UDHR and ratification of various international human rights treaties” (Dembour, 2010)[6]. It is thus argued that human rights exist insofar as they are agreed upon and codified by international and domestic law.
However, whether human rights are inalienable has been a source of debate. For one, Rathore & Cistelecan (2012) have considered the multiplicity of ways in which one might be considered “unhuman”. Hannah Arendt has also offered her perspective on the inalienability of human rights against the backdrop of the Holocaust. Noting the lack of tangible access to rights experiences by refugees by virtue of their statelessness, she concluded that the only true right was the right to have rights. Given today’s challenges of displacement and statelessness, some have thus argued the importance of going beyond the inalienable principle to acknowledge that rights are ultimately inseparable from citizenship and statehood.[7]
Human rights are indivisible and represent a coherent and homogeneous whole that is necessary for every human being. It is not for the State to decide which category of rights it decides to guarantee. Human rights reinforce each other – as an illustration, it is hard to imagine an effective right to life without a right to water for example.
It was originally intended that one treaty, rather than two, would give legal force to the 1948 UDHR. However, the global ideological divide between the West and the Soviet Union during the Cold War undermined this indivisibility by allowing for two covenants that divided civil and political rights (CPRs) and economic, social and cultural rights (ESCRs). While Western countries focused exclusively on the former and neglected the latter, the Soviet bloc adopted the opposition position. In particular, China and Russia argued that ESCRs have equal status to CPRs. Counties like these have been criticised for breaching CPRs, but have been less inclined to breach ESCRs. The ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) was slower than for the International Covenant on Civil and Political Rights (ICCPR) and nowadays, it still happens that some States are only parties to one of the covenants. For example, Myanmar ratified the ICESCR in 2017 but, while the Human Rights Council recommended that it ratify the ICCPR in its Universal Periodic Review in 2015[8], Myanmar is still not a party to one of the main human rights instruments.
However, some have remained sceptical of whether human rights are truly indivisible. For instance, Whelan (2010)[9]argues that the rhetoric of indivisibility has frequently been used to further political ends, but has little to do with promoting the rights of individuals.
1.1.4 Equality and non-discrimination
One of the core obligations under human rights law is the principle of non-discrimination which stems from the universal nature of these rights. While no express definition is given of the concept of discrimination in the common Art. 1 of the two covenants of 1966, the Human Rights Committee has stated that discrimination should be understood to imply “any discrimination, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms”.[10] The prohibition of such behaviour is repeatedly included in most, if not all, human rights instruments. In addition to the two covenants of 1966 (Art. 2), the Convention on the Rights of the Child as well as the Convention on the Rights of Persons with Disabilities prohibit discrimination as well.
However, it is worth noting that the ICCPR authorises state parties, on certain strictly specified conditions, to derogate from international legal obligations under it (with regards to the principle of non-discrimination). Under Art. 14(1) of the ICCPR, the derogatory measures must not involve “discrimination solely on the ground of race, colour, sex, language, religion or social origin”. Thus, the provision does not include the following grounds contained in Art. 2(1) and 26 of the ICCPR – political or other opinion, national origin, property and birth or other status. With regard to the word “solely”, the UK (which had submitted the draft proposal”) considered that it had a certain importance since “it might easily happen that during an emergency a State would impose restrictions on a certain national group which at the same time happened to be a racial group” and “that word would make it impossible for the group to claim that it had been persecuted solely on racial grounds”.
It is now widely agreed that the sole absence of interference does not allow states to achieve de facto equality, which refers to a state of equal opportunities and objective equality in results. Indeed, discrimination does not only exist when an authority discriminates between two persons but is also related to the society in which one lives. The concept of positive discrimination requires positive action to achieve de facto equality. The notion of non-discrimination went from equality in front of the Law, that requires to stop discriminatory laws to equality in the facts that require to take positive affirmative actions to achieve a real equality of opportunity. Such actions can be public policies in the field of education, employment. Nowadays, electoral quotas are also widely use to assure the representation of a certain group. However, the assumption that such affirmative action achieves de facto equality should be questioned. While many countries allow the practice of positive discrimination, it remains illegal in the UK under the Equality Act 2010, on the grounds that the process does not accord equal treatment to all races. In addition, there are also negative impacts of positive discrimination – critics have argued that affirmative policies that treat different racial groups differently will entrench racial antagonism.
The very notions of equality and non-discrimination have been the topic of numerous discussions between scholars. For example, the feminist international law scholar Hilary Charlesworth argues that in practice a hierarchy between different kind of discrimination have been developed in International Law as racial discrimination is somehow considered as more severe than discriminations on other grounds such as gender-based discrimination.[11]
1.2 Classification of human rights
This classification was introduced by Karel Vasak, who was the First Secretary-General of the International Institute of Human Rights in Strasbourg, in 1979. The three generations are supposed to follow the three principles of the French Revolution “Liberté, Egalité, Fraternité”.
The first generation is composed of the civil and political rights, which have been recognized at the end of the 18thcentury at a time when political regimes compatible with political liberties were emerging in Europe. There are two subcategories of civil-political rights: (i) physical and civil security; and (ii) individual liberties. These rights are “negative” in nature, which means that to implement them, the government simply has to refrain from infringing upon them. Many of the rights in this generation are based on the US Bill of Rights and the French Declaration of Rights of Man and of the Citizen. Additionally, the International Covenant on Civil and Political Rights outlines the global framework for this type of human right.
The second generation combines economic, social and cultural rights, and has been enshrined in the International Covenant for Economic, Social and Cultural Rights. While they were not explicitly recognized in the national declarations in the 18th century, these rights are sometimes necessary for the implementation of the former. Such rights have been included in the Constitution of Mexico in 1917 as an example. Economic social and cultural rights represent a decline in the liberal ideology and are inspired by socialist ideas. It represents a new role for a more interventionist state. Unlike first generation rights, these rights are “positive”, and requires institutional support from the state – the state must intervene through legislation to create an institutional system that allows exercise, for instance, of the right to education.
The third generation corresponds to solidarity rights, which are group or collective rights such as the right to peace, development for example. Implementation does not only depend on the relation between the State and the individual, but also the totality of the actors in the society. Consequently, as these rights often do not carry official legal status and are soft law, there is a need for both national governments and the international community to recognize them. There are two subtypes of solidarity rights: (i) self-determination, and (ii) special rights of ethnic and religious minorities. Most recently, these rights may include the right to natural resources and a healthy environment.
In addition, some argue that a fourth generation is now appearing which regroups the rights of the future generations and the rights related to genetic engineering. Indeed, the progress of science and communication technologies has consequences on human rights and some international documents already acknowledge that phenomenon. This is notable the case in Europe with the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine.[12] In addition, the 2030 Agenda for Sustainable Development reminds us, “the spread of information and communications technology and global interconnectedness has great potential to accelerate human progress.”[13] Studying the human genome, genetic manipulation, in vitro fertilisation, experiences with human embryos, euthanasia and eugenics are activities that can generate complicated legal issues, ethical, moral and even religious reason for which public opinion has led states to deal with the regulation of these issues.
While this categorisation can be seen today, such as in the Charter of Fundamental Rights of the European Union, the UDHR does not follow these categories. Indeed, this classification by generations of rights is not free from flaws. First, from a historical point of view, some of the rights of later generations were recognized at the same time, if not before some of the first categories. Vasak presented no arguments or explicit timeframe to contextualise the generational concept. While he originally used a 30-year span dating back to the 1948 Universal Declaration followed by the two Covenants in 1966, he modified the theory later by linking the three generations to the French Revolution’s concepts, backdating it another 150 years. Second, it undermines the principle of indivisibility of human rights as it implies that the first generation, the civil and political rights, could exist without the other generations of rights. To this end, it has been stressed that equal emphasis must be placed on all three types of rights to achieve balance and coherency in human rights. Third, the theory’s promotion of the hierarchy of human experience – placing French and American historical experiences as defining features of a transnational story – may be problematic in being overly Western-centric.
1.2.2 Civil and political rights vs economic, social and cultural rights
Most commonly, human rights are distinguished in two main categories: civil and political rights and economic, social and cultural rights. Each of them can be subdivided. This classification is supported by the adoption of two separate covenants in 1966.
Civil and political rights: These rights are said to be “classic”, and are known as “liberty oriented human rights” because they provide, protect and guarantee individual liberty to an individual against the State and its agencies. They include the right to right to life, right to freedom from torture, right to a fair trial, right to freedom of assembly and association, right to liberty and security and right to freedom from discrimination. Civil and political rights are intended to be immediately implemented and precise, to facilitate judges’ interpretation. They reflect a liberal ideology. These rights came to the fore in the 18th and 19th centuries, where the struggle for rights focused on the liberation from authoritarian oppression and the corresponding rights of free speech, association and religion and the right to vote. In particular, civil rights were commonly associated with the 1960s movement in the US to establish equality for people of African descent and with the US Bill of Rights. By the end of the 20th century, their reach and recognition was global, embodying and providing legal support for basic concepts of human dignity and respect for individuals and groups in their diverse cultures and ways. While this category of rights had previously been seen as only necessitating a negative action from the State, according to more modern concepts of political rights, every citizen should have the right and opportunity, without unreasonable restrictions, to take part in the conduct of public affairs. It follows that such rights presume that the government actively structures its processes so as to provide opportunities for political participation of all eligible citizens.
Economic, social and cultural rights: These rights were developed in the aftermath of World War II against the background of growing inequalities and the changed view of the state’s role in an industrialising world. Unlike civil and political rights, economic, social and cultural rights typically require more economic resources and positive actions from the State, and have thus been referred to as “rights-debts”. They are known as “security oriented human rights” because these rights jointly provide and guarantee the essential security in the life of an individual. They include the right to an adequate standard of living, the right to education, the right to a healthy environment and the right to social security One of their particular features is the ‘progressive realisation’. The ICESCR, for example, recognizes that such rights are not all immediately realisable. States have the obligation to take appropriate measures, based on their available resources, towards the full realization of the ECS rights. Economic, social and cultural rights have been criticized as being “vague”, difficult to monitor effectively and thus not judicially enforceable as there is no metric to measure whether a state has fulfilled its obligations. However, most sovereign states have enshrined ESCR in their constitutions, and there are numerous examples of courts applying domestic and international law to protect these rights. Vagueness has also not prevented international development agencies from attempting to develop metrics to “measure” the extent to which states have fulfilled these obligations, for instance, the UNDP’s human development index and gender-related indices, UNICEF’s rate of progress measurements and the World Bank’s World Development Reports.
Evaluation
There has been a deep and longstanding disagreement over the status of and relationship between the two sets of rights. From one extreme to the other, the views stretch from ESCRs being superior to civil and political rights to ESCRs not constituting rights at all. Some argue that the implementation and recognition of ESCRs in domestic legislation have a tendency of being neglected of civil and political rights, and this can be attributed to the different nature of the two sets of rights – ESCRs presupposes a proactive state that attends to citizens’ needs whilst civil and political rights revolve around limiting the state’s interference in citizens’ lives.
1.3 Sources and basic principles of public international law
International human rights law is part of the broader public international legal order. Thus, to better grasp its complexities and nuances, it is necessary to first understand the basic principles of the international legal order at large.
In 1648, the Peace of Westphalia marked the starting point of ‘the modern system of sovereign states’[14], in which states recognized their equal sovereignty. In the aftermath of the two world wars, the United Nations Charter strengthened the existing international system based on the sovereign equality of the states so as to protect states from unwanted violent intervention from antagonistic external forces, and by extension, protect the human rights of citizens (Art. 2).[15] The concept of state sovereignty has both an internal and external element – while it gives individual states complete control over their territory, it also restricts the influence that states have on one another. Theoretically, this means that states would be able to do as they wished within their territory.
However, the international legal order limits this ability by putting some limit on this internal sovereignty. While it is true in any branch of international law, this is especially relevant to the field of human rights. For one, the international security and human rights norm of “Responsibility to Protect” mandates the international community to intervene to prevent and stop genocides, war crimes, ethnic cleansing and crimes against humanity. This global political commitment was endorsed by all member states of the UN at the 2005 World Summit.
In domestic law, signing a contract binds the parties; in international law, ratifying a treaty similarly binds countries. States that have signed and ratified an international treaty should fulfil their obligations under treaties they have signed and ratified pursuant to the principles of pacta sunt servanda and good faith, enshrined under the Vienna Convention on the Law of Treaties, which states that ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.’[16] Consequently, human rights law was developed to protect the individual against the state. Thus, state sovereignty is evolving from an absolute concept of unlimited freedom and independence to a relative concept where freedom and independence of states is limited by international law.
CASE STUDY
On the issue of migration, Thompson says that ‘[t]here is a fear that protecting human rights […] undermines state sovereignty’[17]. A particularly relevant example can be seen in the case of border control. In the ICJ’s Nottebohm case, Judge Read considered that “[w]hen an alien comes to the frontier, seeking admission, either as a settler or on a visit, the State has an unfettered right to refuse admission’[18]. However, according to the Refugee Convention, it is prohibited to expel an alien ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’[19] Thus, the prohibition of refoulement is at odds with the state sovereignty which grants the ability for a State to control its border. However, nowadays, some, as Popovski, argue for a change in our way of thinking about state sovereignty which ‘no longer antagonizes but rather incorporates the concept of human rights’. For him, ‘the sovereignty of the State means the sovereignty of people, not of leaders’[20].
1.3.2 Sources of international law
Article 38(1) of the Statute of the International Court of Justice lists the different sources of international law the Court can decide to apply. These are:
- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- 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.[21]
The above, however, does not provided for a complete list of sources of international law the ICJ may use, and in effect, has used in its jurisprudence. In addition to the sources listed, other sources exist, such as binding decisions of international organisations and unilateral acts.
Treaties are the main source of international law. A treaty is ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.[22] The body of international law governing the formation of and compliance with treaties is contained mainly in the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, which was drafted by the International Law Commission. The Law of Treaties sets out the basics rules regarding the capacity to conclude treaties, how treaties should be interpreted, the resolution of disputes pursuant to treaties and other basic principles including the fundamental rule of pacta sunt servanda. According to this adage, agreements rightfully concluded must be honoured. The only limit to pacta sunt servanda are the peremptory norms of general international law, called jus cogens, a fundamental principle of international law accepted by the international community as a norm from which no derogation is permitted.
A state’s decision to sign a treaty emanates from its own free will, thus in doing so, it therein expresses its consent to be bound by its provisions and perform obligations pursuant to said treaty in good faith. However, a particularity of the law of treaties lies in the possibility for states to modify their legal obligations through the mechanism of reservations. According to the Vienna Convention, a reservation is ‘a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.’[23] When making a reservation, a state can limit the scope of application of some provisions under the treaty. Nevertheless, some limits to this mechanism exist and a reservation can only be made if compatible with the objects and purposes of the treaty.[24] Should the treaty in question create a body, this determination would be made by the latter. The reason for this exception to the binding nature of a treaty is purely realistic. The drafting process of a treaty implicates a multitude of actors and disagreements are common; however, to be bound by a treaty, a state needs to express its full consent. As a result of constraints within their domestic law, states often accept obligation in terms of a treaty only insofar as their municipal law allows them to do so. International law thus allows for such reservations in order to enhance the total numbers of signatories and to broaden the geographical scope of application of a treaty. However, this reservation mechanism has provoked questions on whether efforts to promote respect for and observance of human rights have, to a certain extent, been frustrated by the widespread practice amongst individual states of signing and ratifying international instruments dealing with the protection of human rights while at the same time entering reservations excluding the applicability of specific provisions to their own situations. To this end, critics have argued that this practice considerably undermines the effectiveness and impact of a treaty.
In the field of human rights particularly, some treaties establish a derogation system to suspend their obligations under exceptional circumstances and for a limited period of time. Similar to reservations, this mechanism allows states to calibrate their overall level of international commitment. In authorising states to temporarily deviate from treaty rules if exigent situations arise, escape clauses, ceteris paribus, encourage more states to ratify a treaty than would do so without such clauses. However, escape provisions can also weaken international agreements by authorising deviant behaviour precisely when treaty compliance is needed most.
At the same time, it should be noted that treaties can also bind non-signatories. Treaties that have been signed by a large majority of states may be viewed of as having such importance as to be universal in effect, so that the minority of non-signatory states are bound. More often, the treaty is universalized by more indirect means. For example, the “objective effect” doctrine singles out certain treaties as being valid erga omnes. It never seems to be made clear exactly which quality produces this effect, nor which organ decides whether that quality is present; but the effect is clearly to presume the consent of states (Bodansky & Watson, 1992).[25]
Defined in the Statute of the ICJ as being ‘a general practice accepted as law’, customary international law is recognized as a source of international law and as such, produces binding obligations on states. While treaty law only applies to those that expressly manifested their consent through ratifying a document, customary international law is binding upon all states. The development of customary international law reflects the characteristics of the international community understood as a legal community. It has the advantage that all states may share in the formulation of new rules and that customary international law can be modified, changed or amended through this international community more easily than is possible for treaty law (Wolfrum, 2011)
There are two main components that cumulatively constitute customary international law. There must be a widespread practice amongst many and the most relevant states, and states must adhere to them not merely because they find it convenient, but because they believe that the rule is a binding legal norm. These are called usus and opinion juris.
- Usus (State practice): There must be a consistent behaviour of states manifested through their actions and statements. This is an objective criteria.
- Opinion Juris (Belief in the legal nature of the practice): States must believe that their actions have a legal basis by opposition to a policy. This is a subjective criteria.
While there is no hierarchy between treaty law and customary international law, some norms, which can be the result of either of these sources, are recognized a higher status. Those are known as peremptory norms of general international law or jus cogens. The only international treaty to recognize it is the Vienna Convention on the Law of Treaties which defines it as ‘a norm accepted and recognized 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’.[26] The principle has not only been acknowledged in the VCLT, but the ICJ as well – the court implied its existence when it referred to obligations erga omnes in the 1970 Barcelona Traction Case. The ICJ spoke of “obligations of a State towards the international community as whole’ which were ‘the concern of all States’ and for whose protection all States could be held to have a ‘legal interest’ ([32]). Since 1970, the ICJ has also implicitly recognized the existence of jus cogens in several cases. It has stated that the question of whether a norm is part of the jus cogens relates to the legal character of the norm (Legality of the Threat or Use of Nuclear Weapons [Advisory Opinion] [258]; Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [38–9]).
Two main issues arise from that notion of jus cogens. First, who exactly is authorised recognize a norm as being peremptory and how; and second, what legal consequences arise from recognising such status. On the former question, it took a while before the International Court of Justice recognized the peremptory nature of norms in international law and even to date only a few have been acknowledged as being jus cogens as it is the case for the prohibition of torture[27]. The International Law Commission’s Draft Articles on the Law of the Treaties provides greater guidance in this respect. The commentary on Art. 50 mentions as examples a treaty contemplating the use of force contrary to the principles of the UN Charter, a treaty contemplating the performance of any other act criminal under international law, and a treaty contemplating or conniving at the commission of acts such as trade in slaves, piracy, or genocide, in the suppression of which every State is called upon to co-operate. These prohibitions have similarly been listed in the Draft Articles on State Responsibility (2001), in addition to prohibition against discrimination and apartheid. Once a norm is recognized as having such status, the question of the legal consequences from breaching said norm arises. To date, the only clear and agreed upon obligation for a state is to not conclude any treaty against such norm.[28] According to Art. 53 of the VCLT, a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.
Lord McNair coined the term “soft law” to describe “instruments with extra-legal binding effect”. More generally, soft law is used in legal literature to describe principles, rules and standards governing international relations that are not considered to stem from one of the sources of international law enumerated in Art. 38(1) of the ICJ Statute. These extra- or paralegal norms are of particular importance in international relations especially as international law does not recognise a common superior legislature or central, compulsory jurisdiction, thus international actors often resort to using norms that underpin the legal principles and rules constituting the core of international order without being law themselves (Thurer, 2009)[29]. There are two major categories of soft law: resolutions (i.e. recommendations or decisions) of international organisations and non-binding inter-state agreements.
However, the soft law phenomenon has faced certain fundamental challenges. For one, it seems to suggest that in international relations, no precise distinction can be drawn between norms of a legal and non-legal character. This questions the established dichotomy between law and non-law and could lead to the denial of the very existence of international law as a set of rules in international relations. Furthermore, soft law has been criticised for its non-binding character, which does not have as much force as treaties and customary international law does in obliging states to perform certain obligations. However, soft law has also been welcomed precisely because of its non-binding character. The UDHR, for instance, was drafted by the UN General Assembly as a recommendation, and its adoption would not have taken place if it had been in the form of a legally binding treaty given the multiple the objections and abstentions it faced.
1.3.2.4 General principles of law
Although often very general and abstract, the general principles of international law remain necessary to maintain and restore international peace and security, as well as to fill gaps present in the sources of international law when necessary. As for jus cogens, the general principles of law have long been, and are still, the object of doctrinal debates. Most scholars consider that such principles derivate from domestic legal systems and consist of shared principles at the national level. Most fundamentally, the principle of jus cogens recognises that the goal of preserving peace and protecting individuals presupposes the existence of some basic values.
1.3.2.5 Judicial decisions and teachings of international law
As a general matter, judicial decisions by the ICJ are not binding on states that are not party to the dispute (Art. 59 of the Statute of the International Court of Justice). However, they are particularly useful in interpreting treaty law and customary international law, establishing the evidence of a state practice and gaining insights on principles recognised by the court. While the decisions of the ICJ are only binding between the parties (and not to the entire community of states), the Court often refers to its own case law and it is common for international jurisdictions to refers to the decisions of others to support a particular case to ensure “consistency of jurisprudence” (Legality of Use of Force (Serbia and Montenegro v Portugal) (Preliminary Objections, Judgement) [2004] ICJ Rep 1160, 1208).
Teachings of the most highly qualified publicists of the various nations (Art. 38(1)(d) of the ICJ Statute): the work of prominent jurists is not per se a source of international law, and the Court may use the teachings of publicists only “as a subsidiary means for the determination of rules of law”. However, it does have an essential role in the development of the rules, though the influence of scholars is more conceptual than factual. It is common for international courts, arbitration tribunals and other bodies engaged in resolving disputes to cite scholars in their deliberation, especially at the International Court of Justice. This was acknowledged by Sir Huphrey Waldock, a Judge of the ICJ, who stated that “[t]he way in which individual judges quite often make use of them in their separate opinions indicates that they have played a part in the internal deliberations of the Court and in shaping opinion”
[1] United Nations General Assembly (UNGA), “Universal Declaration of Human Rights”, Article 1.
[2] Wong Kan Seng, “The Real World of Human Rights” http://www.nas.gov.sg/archivesonline/speeches/record-details/7b65bcf8-115d-11e3-83d5-0050568939ad (accessed 11 June 2019).
[3] Chan, J., “The Asian challenge to universal human rights: A philosophical appraisal”.
[4] UNGA, “Vienna Declaration and Programme of Action”, Note by the Secretariat (12 July 1993), A/CONF.157/23, p. 5.
[5] United Nations Educational, Scientific and Cultural Organization (UNESCO), “UNESCO Universal Declaration on Cultural Diversity”, Article 4.
[6] Dembour, M., “What are Human Rights? Four Schools of Thought”, p. 1–20.
[7] Nasr, L., “Are Human Rights Really ‘Universal, Inalienable, and Indivisible’?”, https://blogs.lse.ac.uk/humanrights/2016/09/14/are-human-rights-really-universal-inalienable-and-indivisible/ (accessed 12 July 2019).
[8] Human Rights Council (HCR), “Report of the Working Group on the Universal Periodic Review of Myanmar”.
[9] Whelan, D., Indivisible Human Rights: A History.
[10] United Nations (UN), “Compilation of General Comments and General Reccomenadtions adopted by Human Rights Treaty Bodies” p. 187, para. 7.
[11] Charlesworth, H., Concept of Equality in International Law, p. 143.
[12] Council of Europe (CoE), “Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine”.
[13] UNGA, “Transforming our world: the 2030 Agenda for Sustainable Development”, p. 15.
[14] Mansell, W. and Openshaw, K., International law: A critical introduction, p. 30.
[15] UN Charter, Article 2.
[16] UN, “Vienna Convention on the Law of Treaties”, Article 26.
[17] Thompson, L. “Protection of Migrants’ Rights and State Sovereignty”, https://unchronicle.un.org/article/protection-migrants-rights-and-state-sovereignty (accessed 5 March 2019).
[18] The Nottebohm Case (Liechtenstein v Guatemala), 1955 ICJ 4 (6 Avril 1955), Dissenting Opinion of Judge Read, 46.
[19] UN, “Convention Relating to the Status of Refugees” Article 33.
[20] Popovski, V. “Sovereignty as Duty to Protect Human Rights”, p.17.
[21] International Court of Justice, “Statute of the International Court of Justice”, Article 38(1).
[22] UN, “Vienna Convention on the Law of Treaties”, Article 2(a).
[23] UN, “Vienna Convention on the Law of Treaties”, Article 2(d).
[24] UN, “Vienna Convention on the Law of Treaties”, Article 19(c).
[25] Bodansky, D. & Watson, J. S., “State Consent and the Sources of International Obligation”, p. 108-113.
[26] UN, “Vienna Convention on the Law of Treaties”, Article 53.
[27] International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Anto Furundzija (Trial Judgement), IT-95-17/1-T (10 December 1998).
[28] UN, “Vienna Convention on the Law of Treaties”, Article 53.
[29] Thurer, D., “Soft Law”, Max Planck Encyclopaedia of Public International Law, 2009.