Identifying the norms of the customary international law of human rights

2021 ◽  
pp. 40-101
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
Customary Law ◽  
Periodic Review ◽  
Customary International Law ◽  
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 Customary International Law of Human Rights

2021 ◽  
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
Periodic Review ◽  
Human Rights Law ◽  
Customary International Law ◽  
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.

Conclusion

2021 ◽  
pp. 341-346
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
Customary Law ◽  
Periodic Review ◽  
Customary International Law ◽  
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.

scholarly journals The belated emergence of the customary international law of human rights

2021 ◽  
pp. 9-39
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
The United States ◽  
Customary Law ◽  
Customary International 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.

scholarly journals The Role of Customary International Law in Regulating the Activities of Armed Groups in the Field of Human Rights

2021 ◽  
Vol 16 (5) ◽  
pp. 195-204
Author(s):  
R. I. Sharipov
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Armed Groups ◽  
Customary International Law ◽  
Protection Of Human Rights ◽  
Jus Cogens ◽  
Relationship Of ◽  
Peremptory Norms

Over the past decades, there has been a significant increase in the number of armed groups involved in armed conflicts around the world, as well as in their impact on the rights and freedoms of the population under their control. Facing various situations of systematic violations of human rights by non-state actors, experts in the field of international human rights law began to consider the theoretical justification for the mandatory nature of the provisions on the observance and protection of human rights for armed groups. In this regard, a number of scholars have turned to the theory of customary international law, the acceptability of which is being investigated by the author of this paper. The author examines the provisions underlying this theory and the persuasiveness of the argumentation used by its supporters. Based on an analysis of the nature of customary international law, its structural elements, their interpretation by the UN International Court of Justice in its decisions and the relationship of customary international law with peremptory norms of jus cogens, the author concludes that the theory under consideration is currently unable to explain the existence of obligations of armed groups in the field of human rights.

Part II Substantive Law, 3 Customary International Law Analysis

2018 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
International Law ◽  
War Crimes ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
Key Characteristics ◽  
State Practice ◽  
Jus Cogens ◽  
Substantive Law ◽  
Peremptory Norms

This chapter explains the theory behind, and the key characteristics of, core crimes (such as genocide, crimes against humanity, and war crimes) proscribed by peremptory norms (jus cogens), from which derogation is not permitted, as well as the importance of their prosecution. State practice and its acceptance as law in support of the existence of the customary international law binding on all States to either extradite or prosecute perpetrators of core crimes are systematically elaborated pursuant to the established criteria for the identification of customary international law.

scholarly journals THE CHALLENGES OF IMPLEMENTING PROHIBITION OF TORTURE IN TWO LEVELS: ASEAN AND INDONESIA

2012 ◽  
Vol 1 (2) ◽  
Author(s):  
Erna Dyah Kusumawati
Keyword(s):  
Human Rights ◽  
Criminal Code ◽  
Customary Law ◽  
Customary International Law ◽  
Peremptory Norm ◽  
Degrading Treatment ◽  
The Law ◽  
Asean Countries ◽  
Cat States ◽  
Jus Cogens

<p align="center">ABSTRAK</p><p>Artikel ini menganalisis implementasi larangan penyiksaan level ASEAN dan Indonesia. Pembahasan diawali perkembangan pengaturan dan ratifikasi Konvensi PBB di tingkat ASEAN. Kemudian perkembangan dalam hukum nasional Indonesia. Selanjutnya analisis ditujukan kepada tantangan dan hambatan yang mungkin dihadapi dalam mengimplementasikan larangan penyiksaan di kedua level, regional dan nasional. Hasil analisis menyatakan bahwa larangan penyiksaan termasuk sebagai hak asasi yang bersifat fundamental dan tidak dapat dicabut (<em>non-derogable</em>). Norma larangan penyiksaan juga termasuk sebagai <em>ius cogen</em> atau <em>peremptory norm atau </em>norma yang memaksa<em> </em>dan sudah dianggap sebagai<em> </em>hukum kebiasaan internasional<em>. </em>Dengan demikian, meratifikasi atau tidak negara-negara anggota ASEAN dianggap terikat dan harus memenuhi kewajiban diatur dalam Konvensi Anti Penyiksaan. Terdapat kelemahan dalam tingkat ASEAN, yaitu dalam hal monitoring pemenuhan kewajiban-kewajiban Negara anggota. Badan HAM ASEAN tidak didesain sebagai pengawas yang independen, karena berada di bawah organisasi ASEAN. Pada level Indonesia, penyiksaan masih banyak ditemukan terutama untuk mendapatkan pengakuan tersangka dalam proses penyidikan dan penyiksaan dalam tahanan. Hukum di Indonesia belum berlaku maksimal. Konstitusi dan Hukum Hak Asasi Nasional sudah mengatur bahwa hak terbebas penyiksaan merupakan hak yang tidak dapat dicabut, namun demikian perlindungannya belum maksimal, mengingat KUHP tidak menjamin keseragaman pelaksanaan hukuman bagi pelaku penyiksaan. Demikian juga Pengadilan Hak Asasi Manusia tidak mempunyai kewenangan memeriksa perkara penyiksaan. Sehingga masih banyak diperlukan koreksi dalam hukum nasional, termasuk wewenang investigasi KOMNAS HAM dalam hal terjadi penyiksaan.</p><p>Kata Kunci : Implementasi, Anti Penyiksaan, Hak Asasi Manusia</p><p align="center">ABSTRACT</p><p>This article will address the issue regarding prohibition of torture and its challenges at two levels: ASEAN and Indonesia. The prohibition of torture is considered to be a rule of “<em>jus cogens</em>” or peremptory norm as well as customary law. In addition the prohibition of torture is absolute and non-derogable. Therefore, it entails some obligations for states whether or not they ratify the CAT. States have the universal obligations to prevent torture and inhuman degrading treatment in their jurisdiction under international customary law. Since many of ASEAN countries do not ratified ICCPR, the AICHR have to implement the prohibition of torture based on the customary international law. In addition, AICHR needs to monitor the national law regarding the prohibition of torture. However, the AICHR lacks of protection mandate and might not functioning well especially when dealing with the allegation of the prohibition of torture or other human rights’ allegations within ASEAN jurisdiction. In Indonesia, the use of torture to get the confession is widely used by the police. Not all the perpetrators are brought to the Court of Law and are given an equitable sentences; although, Indonesia does have a regulation on prohibition of torture; the Criminal Code, the Law No 39/1999 concerning Human Rights, and the Law No. 26/2000 concerning Human Rights Courts. There is lack of competence of the Indonesian Human Rights Court to hear the violation cases. Also, there is lack of competence of the Indonesian Commission on Human Rights to investigate cases concerning torture.</p>Keywords: Implementation, Prohibition of Torture, Human Rights

The Idea of International Human Rights Law

2019 ◽  
Author(s):  
Steven Wheatley
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Moral Concept ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Fragmentation Of International Law

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.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

Diplomatic Protection: Taking Human Rights Extraterritorially

2007 ◽  
Vol 44 ◽  
pp. 299-352
Author(s):  
Noura Karazivan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
The United Kingdom ◽  
Current State ◽  
Diplomatic Protection ◽  
Human Rights Treaties ◽  
Legitimate Expectations ◽  
Jus Cogens ◽  
To Receive

SummaryThis article argues that states should have a limited obligation — and not only a privilege — to extend diplomatic protection to their nationals when they are facing violations of their most basic human rights abroad. The author addresses the current state of international law regarding diplomatic protection, with a focus on the International Law Commission's failed attempt to impose a duty on states to exercise protection in cases of jus cogens violations. A review of domestic case law, particularly in the United Kingdom, Canada, Germany, and South Africa, shows that while some courts recognize legitimate expectations to receive diplomatic protection, all are reluctant to exercise judicial review of a denial of diplomatic protection. The author nevertheless examines whether adherence to international human rights treaties could entail a positive obligation for states to exercise diplomatic protection in order to protect the human rights of their nationals that are ill-treated abroad.

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

2021 ◽  
pp. 1-8
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
Customary International 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.

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