Lecture 2 - Sources of Law (Human Rights)

What is the International Bill of Human Rights?

The UDHR + ICCPR + ICESCR

What is the UDHR?

The Universal Declaration of Human Rights.

• It sets out fundamental human rights but is not legally binding.

What is the difference between the UDHR and the ICCPR/ICESCR?

• The UDHR is a declaration (not legally binding)

• The ICCPR and ICESCR are treaties that become legally binding when a state ratifies them.

What does the ICCPR protect?

Civil and Political Rights

• E.g. Freedom of speech, fair trial, freedom of religion

What does the ICESCR protect?

Economic, social and cultural rights

• E.g. education, healthcare, work, and an adequate standard of living

What is the difference between the UN human rights system and regional systems (e.g. ECHR)?

• The UN system sets universal minimum standards.

• Regional systems often provide stronger enforcement, such as allowing individuals to bring cases before regional courts. (ECHR)

International Court of Justice (ICJ) Statute - Article 38

Lists the sources the ICJ uses to decide international disputes:

• Art. 38(1)(a) treaties

• Art. 38(1)(b) customary international law

• Art. 38(1) c) general principles of law

Plus: judicial decisions and scholarly writing as secondary, supporting sources.

What is a treaty (Art. 38(1)(a))?

A formal, legally binding agreement between states.

• States are only bound by treaties they choose to join (state sovereignty).

• The rules governing treaties come from the VCLT (1980).

What is customary international law (Art. 38(1)(b))?

Law that emerges from consistent state practice + opinio juris (the belief that the practice is legally required).

• No written agreement is needed, and it generally binds all states.

What is the persistent objector principle?

A state that consistently and clearly objects to a customary rule while it's forming may exempt itself from it.

• Doesn't apply to treaty law.

What is ius cogens?

The Exception to the Exception

Peremptory norms so fundamental that no state may violate or ignore them

• e.g. bans on slavery, genocide, torture, racial discrimination, aggression, and the right to self-determination.

Article 53 VCLT

Any treaty that conflicts with a ius cogens norm is automatically void.

What are 'general principles of law' (Art. 38(1)(c))?

Legal common ideas across many domestic legal systems

• Good faith

• Procedural justice

Used by international courts to fill gaps when treaties or custom give no clear answer.

What role do judicial decisions and scholarly writing play?

They are secondary sources

• They help interpret and determine the law rather than create it.

Note: Unlike common law systems, they aren’t a direct source of binding law.

Article 59 ICJ

Previous Decisions are not Binding Precedent

• ICJ decisions are not binding precedents. Under Article 59, they only bind the states in that specific case.

• However, the ICJ usually follows its previous decisions for consistency, so they are highly influential in international law.

What are the three categories of convention-based human rights?

1. General (Universal) Human Rights

2. Regional Human Rights Systems

3. Issue-Specific Human Rights Systems

What are the ICCPR and ICESCR?

The two pillars of the 'International Bill of Human Rights' (with the UDHR).

• ICCPR = civil & political rights (expression, religion, fair trial, no torture/arbitrary detention).

• ICESCR = economic, social & cultural rights (work, education, health, standard of living).

What are the main regional human rights systems?

• The European Convention on Human Rights (ECHR),

• The American Convention on Human Rights

• The African Charter on Human and Peoples' Rights.

Europe is considered the strongest since individuals can bring cases directly to the European Court of Human Rights.

What are the key issue-specific human rights conventions?

• CAT (Convention against Torture)

• ICERD (Racial discrimination)

• CEDAW (Women’s rights/gender equality)

• The Genocide Convention

What is the Vienna Convention on the Law of Treaties (VCLT)?

The treaty that governs how treaties are made, interpreted, amended and ended entered into force in 1980.

• Many of its rules reflect customary international law, so courts apply it even to treaties made before 1980 (e.g. ECHR, ICCPR, ICESCR).

Article 27 VCLT

International commitments override internal legal or political obstacles.

• A state cannot rely on its own domestic law as an excuse for failing to perform treaty obligations

Article 46 VCLT

Internal Procedural Mistakes (e.g. skipping a constitutional ratification step) usually don’t invalidate a treaty.

• Unless the violation was very serious and concerned a rule of fundamental importance.

Article 31 VCLT - Treaty Interpretations

A treaty is interpreted mainly according to its object and purpose.

• Considering the preamble, annexes/protocols, and later agreements or practice between the states.

Article 32 VCLT - Treaty Interpretations Part 2

Preparatory work and the historical circumstances of the treaty's creation can be used as a supplementary aid when the meaning is still unclear after Article 31.

Article 33 VCLT

All official language versions of a treaty are equally authentic and equally authoritative, unless the treaty itself says otherwise.

What is a reservation to a treaty? - Article 19 VCLT

A statement made when joining a treaty that excludes or modifies the legal effect of certain provisions for that state.

Article 19 VCLT

Reservations are generally allowed unless:

• (a) the treaty bans all reservations,

• (b) it bans that specific type,

• or (c) the reservation conflicts with the treaty's object and purpose.

How does a reservation become 'accepted' under the VCLT?

If other states don't object to it within 12 months, the reservation is generally treated as accepted.

What happens if a reservation is found invalid?

It doesn't automatically release the state from the treaty.

• Courts and human rights bodies usually sever the reservation and keep the state bound by the rest of the treaty, though this is contested against state sovereignty.

Article 57 ECHR - Reservation Law

States may only reserve on a specific, already-existing domestic law that conflicts with the Convention at the time of ratification.

• Vague or general reservations are not allowed.

What happened in Loizidou v. Turkey (1995)?

Art. 57 ECHR

• Turkey's reservation excluding its forces' acts outside Turkish territory was ruled too broad and invalid.

• The ECtHR severed the reservation, holding Turkey fully bound by the Convention — so the property rights violation in Northern Cyprus stood.

UN Human Rights Committee General Comment No. 24 say?

1. A state joins the ICCPR and may make a reservation (a statement saying it does not accept a particular part of the treaty).

2. The UN Human Rights Committee checks whether that reservation is allowed and whether it goes against the purpose of the ICCPR.

3. If the reservation is invalid, the reservation is treated as having no effect.

4. The state remains bound by the ICCPR without that reservation — meaning it must follow the provision it tried to avoid.

What did the International Law Commission’s (ILC) 2011 guidelines on reservations say?

• Human rights treaties are different from normal treaties because all the rights are connected. Removing one important right can affect the whole system of protection.

• A reservation that removes or seriously limits an important human right may be invalid because it goes against the purpose of the treaty.

• If a reservation is invalid, the general rule is that the state is still bound by the treaty without that reservation.

• However, a state can say: "If my reservation is not accepted, I do not want to be bound by the treaty at all." This is called objecting to being bound without the reservation.