Encore Course: International Human Rights
International Law and Human Rights
January 31, 2010
Definition of international law
A body of legal rules considered binding upon states in their mutual relations.---Source: The International Law Dictionary
The term binding means that states (nations) are required under international law to comply with certain rules or responsibilities.
Types of International Law
Customary law (the original type of international law)
Treaty law (has become more common in recent decades)
Declarations and Resolutions (non-binding documents adopted by international bodies by majority votes)
Customary law and treaty law are considered hard law (real law), whereas declarations/resolutions are commonly referred to as soft law (something that falls short of being real law)
The Nature of Customary Law
Definition---norms of behavior observed by numerous states over time which they consider to be a legal requirement.
Examples:
Right to life
Equality and nondiscrimination
Prohibition of slavery
Prohibition of torture and other violations of human dignity
Prohibition of genocide and crimes of war
Additional observations:
-Customary law is NOT written down in the written codes
-Customary law is considered to be BINDING on all states, except those that made an
effort to object to a norm while it was becoming widely accepted by other states
-To determine what the customary law is on a subject, one should simply view the
past behavior of states. Since this can be a very cumbersome task we look to two
types of interpretations of what the customary law is at any given time of history.
1. the writings of noted legal scholars who express what they observe as the
norms of behavior of states
2. the written opinions of judges in international court cases
-The principles of customary law are generally rather vague leaving much room for
contrasting interpretations in specific case
-In the modern world with many more states and high levels of interdependency,
customary law has become increasingly inadequate for resolving conflicts and
addressing problems.
The Nature of International Treaty Law
Definition--- formal written agreements negotiated between states that spell out privileges and obligations in their
relations among among each other.
Treaties may be between as few as two states or as many as the entire number of states in the world (roughly 200)
Certain types of treaties are referred to by these names:
Conventions or covenants- treaties that are negotiated among large numbers of countries and available to all countries to become parties. (Note that in international law, the word convention always refers to a treaty of this type--and not to a meeting as in common use of the word in English)
Protocols - treaties that follow and build on an earlier treaty on the same same subject. The former are commonly referred to as framework conventions. Protocols usually have more specific regulations (teeth) than framework conventions, which simply provide a legal foundation for addressing a problem, but require little of the countries that accept them.
Charters - commonly refer to treaties that establish international organizations, for example the Charter of the United Nations that was adopted in 1945.
Examples of international human rights treaties---
International Covenant on Civil and Political Rights (1966)
International Covenant on Economic, Social and Cultural Rights (1966)
Convention on the Prevention and Punishment of the Crime of Genocide (1948)
Convention on the Elimination of all Forms of Discrimination Against Women (1979)
European Convention on Human Rights (1950)
American Convention on Human Rights (1969)
African Charter on Human and People's Rights (1981)
Steps in the treaty process---
-Negotiations (talks, often extended, among representatives of countries in which they attempt to reach agreement on the precise wording of a treaty)
-Signature (once the wording of a treaty has been agreed upon, the countries involved in the negotiation sign the treaty indicating their support for it, but this does not constitute official acceptance of the agreement, nor a commitment to abide by it)
-Ratification (the nations that sign a treaty then must decide whether to go to the next step of ratifying it, which formally commits them to complying with the provisions of the treaty. States that have ratified a treaty are said to have become partiesto the treaty. For example in the case of the US, this is done by a 2/3 vote of the Senate; often the Senate is unwilling to ratify treaties that have been negotiated and signed by the executive branch, such as the Comprehensive Test Ban Treaty that was rejected by the Senate in 2000).
-Entry into force (a treaty doesn't become official international law until it has been ratified by a specified number of countries--indicated in the treaty; in the case of the the 1966 International Covenant on Civil and Political Rights it took 12 years to get the required 35 ratifications for the treaty to enter into force; while waiting for the required number of ratifications, the countries that have signed/ratified the agreement are expected to make good faith efforts to abide by the treaty, although they are not formally required to do so)
-Implementation and enforcement (after ratifying a treaty, it becomes necessary for most states to adopt implementing legislation--for example containing rules that will bring the country, and the people under its jurisdiction, into compliance with the treaty)
The Nature of Resolutions and Declarations (Soft Law)
Definition--resolutions and declarations are documents adopted by a majority vote in an international body such as
the UN General Assembly. They are introduced by one or more countries, often sent to a standing committee for consideration, returned to the full General Assembly for final debate and a vote.
Declarations (such as the Universal Declaration of Human Rights of 1948) are a type of resolution that stands out as more important resolutions.
Resolutions (and declarations) are not considered binding on countries, even on those that vote for them. If there is an overwhelming vote for a resolution, some might argue that it indicates a norm of behavior that might qualify as customary law (this, however, is a very disputed point in international law).
While they are not officially binding on states (and thus are considered soft law), resolutions have an advantage over treaties in that they can be adopted relatively quickly, and have thus been referred to as instant international law.
Small countries and developing countries like resolutions, because in many international bodies there is a one nation/one vote rule. Since they are more numerous, they can often mount large voting majorities. The US often finds itself in a small minority of dissenters.
Resolutions can be the first step in addressing international environmental problems. The principles contained in them may become the basis for later negotiations on treaties.
Examples of resolutions and declarations:
Vienna Declaration and Program of Action (1993)
Beijing Declaration of the Fourth World Conference on Women (1995)
UN Millennium Declaration (2000)
UN Resolution on the Right to Water (2010)