Texts and Materials on International Human Rights

Rhona K.M. Smith

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000730371
• Edition: 4
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Texts and Materials on International Human Rights offers a carefully tailored overview of the subject that covers sources and theories, institutions and structures, and substantive rights. The fourth edition is fully updated to include all key developments in the law, in particular issues around reform in the UN and the topical application of human rights around the world.

This collection of materials offers a comprehensive overview of the institutional structures relevant to international human rights law, crucial to the understanding of how law works in this challenging area. Designed to guide students through the fundamental texts for this subject, the author's commentary contextualises each extract to explain its relevance, while highlighted further reading makes links to cutting-edge academic commentary to provide next steps for student research.

Offering a clear text design that distinguishes between materials and author commentary, and including reflective questions throughout to aid understanding, this book is ideal for students seeking to engage with the key issues in the study of international human rights.

Chapter 1
Sources of international human rights

Chapter contents

1.1 Treaties

1.2 Customary international law

1.3 Other international and regional instruments

1.4 A practical guide to sources

This chapter introduces the subject matter of the book. It also provides useful information on how to research human rights, using the wealth of materials available online (and free). Human rights is something of relevance to everyone (and forever): thus it is important that your personal knowledge can readily be updated without the need to reference textbooks. This chapter will thus cover:

• What are human rights?
• Where are human rights found (i.e. sources)?
• Key principles informing international human rights.
• Practical guide to sources of human rights.
• How to research human rights (particularly primary sources).

To many, human rights have their origins in the mists of time. Undoubtedly, human rights are bound up in philosophical thought and religious tenets. The very idea of governance involves some elements of delineation of rights and obligations on the part of the governors and the governed. A degree of reciprocity underpins this: loyalty of the people in return for protection from external harm. Such early history retains echoes today, and such a concept of the rule of law is entwined with many elements of human rights.

Respect for the right to life finds expression in almost all religious texts and faiths. Religions such as Buddhism demand a high level of respect for the life of all creatures (even to the extent of advocating vegetarianism), while some religions permit the taking of life for food (e.g. Islam), and prescribe clearly the methods for killing animals. Those beliefs in earlier times which evinced ritual sacrifice included specific instructions to precede the taking of life. Similar examples from other religious tenets can easily be found. Most faiths include a guide to the rules for the operation of civil society; whether in the Koran, the Bible, the Torah or other texts, the similarities are clear. Respect for elements of human dignity, family life and rules concerning combat have early origins. Indeed many religious texts also contain rules on justice.

As for philosophy, some elements of human rights are bound up in the evolution of the rule of law; other elements find early expression in the revolution of political theory in the eighteenth century, primarily in Europe. However, earlier philosophical writings exhibit concepts now identifiable as human rights: Confucius and Tao are two examples from Asia.

As Tomuschat notes, ‘International protection of human rights is a chapter of legal history that has begun at a relatively late stage in the history of humankind’ (Tomuschat, C., Human Rights between Idealism and Realism, 2003, Oxford: OUP, p 7). As a reflection of this, for the purposes of these materials, the principal sources of human rights are taken in the modern context and are drawn from the principal human rights instruments. Human rights are thus viewed herein as creatures of international law, norms created according to international law and traditions. It is thus appropriate to first outline the mechanisms for creating such norms under international law. Legal force ascribes to international human rights through treaties and customary international law. Today international legal instruments form the basis of human rights in the new world order. This does not diminish the importance of developing an understanding of philosophical and theoretical traditions. Rather, the approach of this text is practical, with the emphasis on legal norms.

The following diagram illustrates the main sources of international human rights. Note that they all overlap to a certain (not necessarily quantifiable) extent. For the purpose of this chapter, international laws are addressed under treaties and States’ custom. Practice is considered under customary international law, and national tradition is omitted from detailed discussion, as obviously it varies from State to State. The most significant impact it has concerns national legal theory, and whether a State adheres to, for example, a liberal or socialist theory of rights.

Glossary of terms

• Convention: Binding agreement between States; used synonymously with TREATY and COVENANT. Conventions are stronger than DECLARATIONS in that they are legally binding for signatory States, and governments can be held for violating them. The United Nations GENERAL ASSEMBLY creates international norms and standards when it adopts conventions; MEMBER STATES can then ratify the UN Conventions, signifying acceptance of their obligations.
• Customary international law: Law that becomes binding on States although it is not written, but rather adhered to consistently out of custom; when enough States have begun to behave as if something is the obligatory law, it indeed becomes law; one of the main SOURCES OF INTERNATIONAL LAW.
• General principles of law: Principles that appear nearly universally in State’s domestic law and, thus, over time become binding on all States; one of the main SOURCES OF INTERNATIONAL LAW.
• Human Rights: The rights people are entitled to simply for being human, irrespective of their citizenship, nationality, race, ethnicity, language, sex, sexuality or disabilities; human rights become enforceable as they become codified as treaties, or as they become recognised as customary international law.
• Jus cogens: Those norms of law which are effectively entrenched in the international regime and are non-negotiable.
• Treaty: Formal agreement between States that defines and modifies their mutual duties and obligations; used synonymously with convention, charter, covenant. When national governments ratify treaties, they become part of their domestic legal obligations.
  • Accession: Acceptance of a treaty by a State that did not participate in its negotiation or drafting.
  • Adoption: Process by which a State agrees to international law; with regard to treaties, adoption usually refers to the initial diplomatic stage at which a treaty is accepted. In order to become effective, after adoption a TREATY usually must be RATIFIED by the legislature.
  • Entered into Force: The day on which a treaty becomes effective; the point at which enough parties have signed on to an agreement to make it effective.
  • Ratification: Process by which a legislature confirms a government’s action in signing a treaty; formal procedure by which a State becomes bound to a TREATY.

1.1 Treaties

Treaties are those binding instruments adopted by States which enshrine the fundamental rights and freedoms to which the State ascribes, and to which its nationals are entitled. These instruments take many forms, and a plethora have emerged on a number of diverse topics over the last 50 years. Treaties are legally binding on the States which sign and ratify them. The 1969 Vienna Convention on the Law of Treaties is a key international agreement which governs the creation, operation and legal effect of most treaties in effect today. It includes the major rules and regulations concerning treaties and, although not all States have ratified it, many elements represent common State practice, and thus it will be used as indicative of the law of treaties throughout.

1.1.1 What are treaties?

VIENNA CONVENTION ON THE LAW OF TREATIES 1969, Article 2(1)(a)

‘[T]reaty’ means 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.

Treaties are formal sources of international law, and very common in international human rights law. Simply put, treaties are contracts concluded under international law and thus they are legally binding on States which have agreed to them. As indicated by the Vienna Convention, terminology varies – treaties, conventions, covenants, protocols, charters and statutes are the most common terms – but irrespective of what the instrument is called, certain common features can be identified. Primarily, most are written (although oral treaties can exist, no relevant examples pertain to international human rights) and thus the content of the rights and freedoms can easily be identified. Treaties can be bilateral (between two parties) or multilateral (between many States), although international human rights treaties are usually multilateral instruments open to any State to sign up to at any time. This is in accordance with the goal of achieving universal human rights.

Treaties are commonly drafted by representatives of States, the ‘umbrella’ organisation (United Nations, African Union, Council of Europe, etc.) and even representatives of non-governmental organisations and thus the beneficiaries of the treaty are the peoples of the world/region. Often an international conference will be convened to allow a wide number of States to debate the proposed terms of the treaty and decide which clauses are and are not acceptable. Some conferences convened to allow debates on treaties are used to launch or conclude proclaimed international decades or years. The Convention on the Rights of the Child is a prime example; it was adopted at the end of the International Decade on the Rights of the Child. The International Decade on the World’s Indigenous Peoples, in contrast, did not succeed in producing an agreed text on the rights of indigenous peoples (see Chapter 11), although one of the first acts of the Human Rights Council in June 2006 partially ameliorated the position: a draft convention was adopted, albeit subsequently rejected by General Assembly.

Treaties may be given a formal name (or title) but are frequently referred to by the city in which the text was agreed by the drafting States. Common examples are the Banjul Charter on Human and Peoples’ Rights of the African Union, the San Salvador Protocol to the American Convention on Human Rights and the Geneva Conventions on the Laws of War. Note that several treaties on different subjects may be concluded in the one city, thus designating treaties solely on the basis of the city (even with the date) is not necessarily definitive. The full title of a treaty may be required for identification purposes.

1.1.2 How do States agree to treaties?

All States possess the capacity to conclude treaties (Vienna Convention on the Law of Treaties Article 6). Membership in the United Nations is not necessarily required, but recognition by other States as a State is. There is normally a two-part process to be followed by States wishing to be bound by the terms of treaties: signature and ratification. States joining a treaty after it has entered into force usually accede to it (whether a State accedes or ratifies can also depend on the nature of the State and its approach to treaty law). These terms are explained in the Vienna Convention.

VIENNA CONVENTION ON THE LAW OF TREATIES 1969

Article 11

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Article 12

1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:
   • (a) the treaty provides that signature shall have that effect...