The Customary International Law of Human Rights

Human Rights Treaties ◽

State Practice ◽

The 1960S ◽

Human Rights Norms

Customary international law is one of the principal sources of public international law. Unlike many branches of international law, human rights law did not first develop as custom and subsequently become codified. Human rights law was viewed as quintessentially a matter of sovereign concern to States until the mid-twentieth century, when treaties and declarations were adopted by the United Nations and other international bodies. Jurists only began to speak of human rights as customary law in the 1960s. Although its existence is uncontroversial, the content of customary international law in the area of human rights has not previously been analysed in a comprehensive manner. This book discusses the emergence of the customary law of human rights, the debates about how it is to be identified, and the efforts at formulation of customary norms. It examines human rights norms in order to determine whether they may be described as customary, using as a basis the content of the Universal Declaration of Human Rights. Much reliance is placed upon relatively new sources of evidence of the two elements for the identification of custom, namely State practice and opinio juris, in particular the increasingly universal ratification of major human rights treaties and the materials generated by the Universal Periodic Review mechanism of the Human Rights Council. The study concludes that a large number of human rights norms may be described as customary in nature, and that courts should make greater use of custom as a source of international law.

Identifying the norms of the customary international law of human rights

10.1093/oso/9780192845696.003.0003 ◽

2021 ◽

pp. 40-101

Author(s):

William A. Schabas

Keyword(s):

Human Rights ◽

Customary Law ◽

Periodic Review ◽

Legal Obligations ◽

Human Rights Treaties ◽

State Practice ◽

Jus Cogens ◽

Peremptory Norms ◽

Regional Custom

References to customary law by national and international courts tend to be perfunctory, with only summary attempts to analyse the evidence. It is the same for jus cogens or peremptory norms. The Universal Declaration of Human Rights is increasingly viewed as a source of legal obligation. The near-universal ratification of human rights treaties facilitates the identification of custom, bearing in mind the phenomenon of reservations. Materials generated by the Universal Periodic Review mechanism of the Human Rights Council provide rich evidence not only of State practice but also of the views taken by States about the content of international legal obligations. Regional custom, jus cogens, and the persistent objector are examined.

The belated emergence of the customary international law of human rights

10.1093/oso/9780192845696.003.0002 ◽

2021 ◽

pp. 9-39

Author(s):

William A. Schabas

Keyword(s):

Human Rights ◽

The United States ◽

Customary Law ◽

Slow Pace ◽

Human Rights Treaties ◽

State Practice ◽

American Law ◽

1960S And 1970S ◽

The 1960S

The drafters of the Universal Declaration of Human Rights and of the treaties it spawned did not refer to customary law as a source. Only in the 1960s and 1970s did jurists start to speak of human rights as customary law, largely out of frustration with the slow pace of ratification of the human rights treaties. Lawyers in the United States were especially enthusiastic, especially after courts began applying custom to the Alien Torts Act, and in 1987 the American Law Institute issued an authoritative statement. A major study by Theodor Meron followed. The United Nations Human Rights Committee produced a list of customary norms in the General Comments. Writers contended that State practice was less significant in the identification of custom.

The Idea of International Human Rights Law

10.1093/oso/9780198749844.001.0001 ◽

2019 ◽

Author(s):

Steven Wheatley

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Moral Concept ◽

Fragmentation Of International Law

Human Rights Treaties ◽

International Human ◽

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

Introduction The customary law of human rights is hiding in plain sight

10.1093/oso/9780192845696.003.0001 ◽

2021 ◽

pp. 1-8

Author(s):

William A. Schabas

Keyword(s):

Human Rights ◽

International Law ◽

Customary Law ◽

Political Rights ◽

Human Rights Law ◽

Regional Systems ◽

Second World

Many areas of international law developed first as custom and were only subsequently, generally in the course of the twentieth century, subject to codification. Human rights law was different. It was viewed as quintessentially a matter of domestic concern, a subject shrouded in State sovereignty. Only following the Second World War was international human rights law recognised as a source of binding obligations, mainly through the adoption of the Universal Declaration of Human Rights and other instruments of the United Nations as well as the regional systems. Later, jurists began contending that the norms in these instruments might also be customary in nature. They struggled with identifying the two classic elements in the determination of custom, opinio juris and State practice. Most analysis of the content of customary international law was rather perfunctory and also quite conservative, confining itself largely to civil and political rights.

Conclusion

10.1093/oso/9780192845696.003.0012 ◽

2021 ◽

pp. 341-346

Author(s):

William A. Schabas

Keyword(s):

Human Rights ◽

Customary Law ◽

Periodic Review ◽

Universal Periodic Review ◽

Human Rights Treaties ◽

Treaty Law ◽

Recent Developments ◽

Review Mechanism ◽

The Right

Custom poses challenges for its identification but at the same time it offers a potential for dynamism that may often be superior to that of treaty law. Recent developments, most importantly the near-universal ratification of major human rights treaties and the Universal Periodic Review mechanism of the Human Rights Council, greatly facilitate the identification of customary law. It is clear that most of the rights in the Universal Declaration of Human Rights are unquestionably part of customary international law. Doubts may persist about a few rights, such as the right to property. Customary law also extends to ‘solidarity rights’ or ‘peoples’ rights’, whose reflection in treaty law is not so universal. Recognition of rights does not ensure that there are effective mechanisms for their enforcement and implementation.

In Lieu of a Conclusion

10.1093/oso/9780198753957.003.0008 ◽

2018 ◽

Author(s):

John Linarelli ◽

Margot E Salomon ◽

Muthucumaraswamy Sornarajah

Keyword(s):

Human Rights ◽

International Law ◽

Global Economy ◽

Human Rights Law ◽

Current State ◽

Neoliberal Capitalism ◽

Transformative Potential ◽

International Economic Law ◽

Human Rights Norms

This chapter recaps the main themes of the volume, ie that the international law of the global economy is in a state of disorder. Claims about the justice, fairness, or benefits of the current state of international law as it relates to the global economy are fanciful. A more credible picture emerges when one considers who is protected, against what, and those relations that are valued and those that are not. Moreover, these claims above all require a suspension of a reflective attitude about what international law actually says and does. When it comes to international economic law, power is masked behind a veil of neutrality when it certainly is not neutral in the interests it protects and offends. As for international human rights law, it overlooks the ways in which it props up extreme capitalism foreclosing the possibility of transformative structural change to neoliberal capitalism. In its most radical areas, human rights norms have been blocked from making demands on the design of the global economy precisely because of their transformative potential. Among the central critiques of international law presented in this book is that international law must be justifiable to those who are subject to it.

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800010857 ◽

2013 ◽

Vol 50 ◽

pp. 243-287 ◽

Cited By ~ 2

Author(s):

Paul David Mora

Keyword(s):

Human Rights ◽

International Law ◽

Armed Conflict ◽

The State ◽

Human Rights Law ◽

Law Of Armed Conflict ◽

International Human

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

International Human Rights Law

The International Human Rights Movement ◽

10.23943/princeton/9780691135151.003.0004 ◽

2012 ◽

Author(s):

Aryeh Neier

Keyword(s):

International Law ◽

The United States ◽

Customary Law ◽

Human Rights Law ◽

The Status ◽

Civilized Society ◽

The U.S

This chapter focuses on the two sources of international law: custom and treaties. Customary international law is the term used to describe rules that are so widely accepted and so deeply held that they help to define what it means to belong to a civilized society. The question of whether customary international law is binding on the United States came before the U.S. Supreme Court as long ago as 1900 in a case called Paquete Habana. Whereas treaty law often covers the same ground as customary international law. Torture is forbidden by customary international law, for example, and prohibitions against torture are also set forth in several multilateral treaties. The effect is to reinforce recognition that a particular norm set forth in a treaty has the status of customary law.

Part VII Inter-linkages with Other Regimes, Ch.45 Human Rights

10.1093/law/9780198849155.003.0045 ◽

2021 ◽

Author(s):

Knox John H

Keyword(s):

Human Rights ◽

Environmental Harm ◽

Human Rights Law ◽

Human Right ◽

Multilateral Environmental Agreements ◽

Healthy Environment ◽

Wide Range ◽

Human Rights Treaties ◽

Environmental Human Rights ◽

Human Rights Norms

This chapter examines the relationship between human rights and the environment, which has developed through the adoption and interpretation of many different national constitutions and laws, human rights treaties, and multilateral environmental agreements (MEAs). The development of what might be called ‘environmental human rights law’ has occurred in three main channels. First, efforts to achieve recognition of a human right to a healthy environment, while ineffective at the UN, have achieved widespread success at the national and regional levels. Second, some multilateral environmental instruments have incorporated human rights norms, especially rights of access to information, public participation, and remedy. Third, human rights tribunals and other monitoring bodies have ‘greened’ human rights law by applying a wide range of human rights to environmental harm. The chapter explains each of these paths of development before sketching potential lines of further development through recognition of the rights of nature and of future generations.

International Human Rights Law

The International Human Rights Movement ◽

10.23943/princeton/9780691200989.003.0004 ◽

2020 ◽

pp. 94-116

Author(s):

Aryeh Neier

Keyword(s):

International Law ◽

The United States ◽

Customary Law ◽

Human Rights Law ◽

The Status ◽

Civilized Society ◽

The U.S

This chapter discusses custom and treaties as the two sources of international law. It explains the customary international law as the term used to describe rules that are widely accepted and deeply held and are used to define what it means to belong to a civilized society. It also recounts the case called “Paquete Habana” in the U.S. Supreme Court that addresses the question of whether customary international law is binding on the United States. The chapter talks about the treaty law or conventional law as the source of multilateral conventions that often covers the same ground as customary international law. It analyzes the prohibitions against “torture” that are set forth in several multilateral treaties and reinforce recognition that a particular norm set forth in a treaty has the status of customary law.