Topic 2: Human Rights in Theory and Practice

Question 1

name the sources of present day international human rights law

Answer 1

Statute ICJ Article 38:
- International treaties / conventions / covenants
- Customary international law
- International general principles of law
- Case law and legal doctrine

Other sources: (came up; are not in the statute)
- Jus cogens / Peremptory norms of international law
- Decisions of international organisations
- Unilateral acts of states (reservations)

Question 2

Explain what an international treaty is

Answer 2

• also called conventions, covenants, charters
• Protocols = additions to a certain HR treaty or convention
• Instruments negotiated by states; mostly under umbrella of international organization (e.g. UN, council of Europe; African Union; Organization of American states)
• States can adhere to these texts –> signature, ratified;
  –> treaties can be invoked against that state, legally binding!
• E.g. ICCPR, ICESCR, CEDAW…
• Regional human rights treaties; e.g. European Convention on Human Rights;

Question 3

What is customary international law?

Answer 3

• Originally unwritten law
• At some point acknowledged that certain rights (even if states have not signed up to a treaty containing them) are so important that they have become custom –> legally binding for all states
• E.g. prohibition of torture, slavery, genocide; right to equality
• BUT: allowed for states to oppose customary international law; can do that immediately after a right has to become a custom; do that repeatedly –> persistent objection –> not bound

Question 4

Explain the concept of international general principles of law

Answer 4

• Deemed so important that international law cannot function without them
• not found in treaties or in customs but deemed to be a principle that underpins international law –> cannot apply and interpret international law without it
• principle of proportionality
• Principle of good faith
• Principle of equity
• Legally binding!

Question 5

what role does case law play in international human rights law?

Answer 5

• source of law
• International or domestic court decides a case –> later on encounter similar case –> return to original case and apply it again

Question 6

What is legal doctrine?

Answer 6

• not legally binding
• writings of professors and other scholars (e.g. arguing how a right or freedom should be interpreted or applied)
• not only about professors; it is broader; e.g. NGO reports
• can be referred to as information by courts

Question 7

What is jus cogens?

Answer 7

• Jus cogens/Peremptory norms of international law
• Form of reinforced customary international law
• Also binding –> what is the difference to custom?
  States cannot object to these rights; cannot use persistent objection

examples
- (en)forced disappearance (people disappeared by states)
- Genocide
- Apartheid
- Colonialism
- Racial discrimination

Question 8

explain how decisions of international organizations are sources of HR law

Answer 8

• UN and regional
• some resolutions of UNSC are binding; still ignored by some states

Non-binding / soft law:
- resolutions
- recommendations
- guiding principles
- declarations
- general comments
- opinions
- documents adopted at end of international conferences (outcome documents; e.g. of COP etc.)
- Soft law instruments have become very important to decide cases!

Question 9

Name the 9 core UN humanr rights treaties

Answer 9

• International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) – 1965
• International Covenant on Civil and Political Rights (ICCPR) – 1966
• International Covenant on Economic, Social and Cultural Rights (ICESCR) – 1966
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) – 1979
• Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) – 1984
• Convention on the Rights of the Child (CRC) – 1989
• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) – 1990
• Convention on the Rights of Persons with Disabilities (CRPD) – 2006
• International Convention for the Protection of All Persons from Enforced Disappearance (CPED) – 2006

Question 10

name some other international treaties relevant for human rights (11)

Answer 10

• Convention Relating to the Status of Refugees (Convention of Geneva or Refugee Convention) – 1951
• Geneva Convention relative to the Treatment of Prisoners of War – 1949
• Geneva Convention relative to the Protection of Civilian Persons in Time of War – 1949
• Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I) – 1977
• Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) – 1977
• Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Adoption of an Additional Distinctive Emblem (Protocol III) – 2005
• ILO No. 169 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) – 1989
• Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime – 2014
• Rome Statute of the International Criminal Court (Rome Statute) – 1998
• Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery – 1956
• Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) – 1948
• most of them adopted under UN but not all of them
• Conventions negotiated by states; often certain states, NGOs, individuals lobbying towards the writing and accepting of these international treaties; for example
• NGOs and Caribbean Island states lobbying for Rome Statute to have ICC
• Swiss NGO pushing for CAT
• Lemkin (jew who survived holocaust); wrote important part of Genocide convention; introduced the idea into international law

Question 11

name 5 european HR treaties

Answer 11

Council of Europe!

• European Convention on Human Rights (ECHR) – 1950
• European Social Charter (ESC) – 1961
• European Convention on the Prevention of Torture, Inhuman and Degrading Treatment and Punishment (ECPT) – 1987
• Framework Convention on the Rights of Minorities (Minority Convention) – 1995
• Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention) – 2011

Question 12

What European organizations are important to distinguish from each other?

Answer 12

Council of Europe: (broader than EU), several HR conventions adopted;

european council and council of the EU are both within the EU; not what we are talking about here!

Question 13

name 3 African HR treaties

Answer 13

• African Charter on Human and Peoples’ Rights (AfrCHPR) – 1981
• African Charter on the Rights and Welfare of the Child – 1990
• Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) – 2003
  
  • very broad; the only international human rights treaty that contains the right to abortion

“And Peoples’ rights” –> refers to collective rights; 3rd generation solidarity rights; e.g. right to a healthy environment included in the Charter

Question 14

name 9 interamerican HR treaties

Answer 14

• American Declaration on the Rights and Duties of Man (American Declaration) 1948
• American Convention on Human Rights (ACHR) 1969
• Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) 1988
• Inter-American Convention to Prevent and Punish Torture 1985
• Inter-American Convention on Forced Disappearance of Persons 1994
• Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belém Do Pará) 1994
• Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities 1999
• Inter-American Convention Against Racism, Racial Discrimination, and Related Forms of Intolerance 2013
• Inter-American Convention on Protecting the Rights of Older Persons 2015
  
  • unique; there is also one in Africa but not in force yet because not enough states have signed up

Question 15

name 10 soft law instruments of internatioan HR law

Answer 15

there are many more!

• UN Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules) 2015
• Yogyakarta Principles +10 on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (The Yogyakarta Principles +10) 2011
• UN Guiding Principles on Business and Human Rights (The Ruggie Principles) 2011
• United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (The Bangkok Rules) 2010
• United Nations Declaration on the Rights of Indigenous Peoples 2007
• Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (The van Boven/Bassiouni Principles) 2005
• Guiding Principles on Internal Displacement 1998
• Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (The Maastricht Guidelines) 1996
• Principles relating to the Status of National Institutions (The Paris Principles) 1993
• Nijmegen Principles and Guidelines on Interim Measures for the Protection of Human Rights (The Nijmegen Principles) 2021