International Human Rights

Law
Aaditya Vikram Sharma
Structure of Lecture
• Introduction
• International Law
• Sources of International Law
• UN Charter
Introduction
Revisiting International Law
• Source of law of any country is the Constitution.
• But, in international law, there is no one source.
• Thus, it is imperative to note that international human rights law is
de-centralized in way.
Sources of International Law
• Article 38 of the Statue of the International Court of Justice (ICJ) lists the sources of
international law.
The Article reads as follows-
“(1) The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.
(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.”
International Treaties
• International Treaties/Conventions- charters, pacts, agreements,
protocols, exchange of notes etc.
• Human Rights treaties in next slide.
International Custom or Customary
International Law

• The second source of international law, and, therefore, also

international human rights law, is listed in Article 38 (1) of the Statute
of the ICJ.
• This source is known as ‘International Custom’ or ‘Customary
International Law’ or simply ‘Custom.'
• Now, defining custom is no easy task.
• However, it is generally understood it means a rule of conduct
recognised by the community of nations as the right rule of conduct
and having the force of law.
International Custom (2)
• Thus, there are two vital elements which constitute custom as a
source of international human rights law. They are:
• (1) The general practice of states in their mutual relations with each other;
• (2) A belief that this practice is rendered obligatory by way of law;
• Eg. Non-refoulement and the granting of immunity for visiting heads
of state.
"While we cannot comment specifically on this lawsuit, I can tell you
that as a general legal principle sitting heads of government enjoy
immunity from suits in American courts," the US official said.

-via https://www.news18.com/news/india/pm-modi-enjoys-immunity-
cannot-be-issued-summons-says-us-as-india-slams-court-order-
716613.html
General principles of law recognized by civilized
nations

• Article 38 (1) of the Statute of the ICJ directs the court to apply “the
general principles of law recognized by civilized nations” in deciding
such disputes as are submitted to it.
Judicial Decisions

• Article 38 (1)(d) of the ICJ Statute clearly establishes that judicial

decisions can be referred to by the International Court of Justice.
• However, the said source will only be considered a subsidiary one.
Jadhav Case, p.
10.
Jadhav Case,
p.16-17.
Teachings of the most highly qualified publicists

• Like judicial decisions, teachings of the most highly qualified publicists

has also been recognized as a subsidiary source of law.
• In the 21st century, the role of writers of international human rights
law has diminished considerably in view of various other forms.
Jus cogens and Soft Law

• This is a sort of international law that is accepted and recognized by

the international community of States as a whole, as a norm from
which no derogation is permitted.
• Under customary international law, if a state persistently objects to a
norm, it is considered not bound by that norm. On the other hand, jus
cogens is derived from values taken to be fundamental by the
international community and a State will be bound by such a norm
irrespective of the State’s take on it.
• Soft law refers to rules that are neither strictly binding in nature nor
completely lacking legal significance. In the field of international
human rights, there is no paucity of such soft laws.
Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (The Gambia v.
Myanmar)
Example of soft law..
Position Paper of the PRC (2020, UN)
“6. Bearing in mind that "a nuclear war cannot be won and must never
be fought", nuclear-weapon states should abandon nuclear deterrence
policies based on preemptive moves, reduce the role of nuclear
weapons in national security policy, stop developing and deploying
global anti-ballistic missile systems, and prevent weaponization and
arms race in the outer space.”

Available at https://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1813751.shtml
UN Charter and Human Rights
• The concept of human rights is based on universality, inalienability,
indivisibility, interdependence, equality and non-discrimination.
• In these lectures, we will explore the relationship between Human
Rights and the Charter of the United Nations.
• Human rights are a concern in all parts of the world and it is
important that we study the provisions in the UN Charter that seek to
promote and protect these rights and bring about greater
international collaboration.
History
• The Charter of the United Nations was signed on 26 June 1945, in San
Francisco, at the conclusion of the United Nations Conference on
International Organization, and came into force on 24 October 1945.
• Human Rights, since the inception of the United Nations, have been
an important part of its purposes, ideals and functions
Human Rights and the UN Charter (1)
• Human Rights, since the inception of the United Nations, have been
an important part of its purposes, ideals and functions.
• It has been noted by several commentators that the Charter is
unsatisfactory as regards its human rights provisions, because it
nowhere specifies these rights.
• Other than the preamble, the provisions of promotion of human
rights are present in the preamble, article 1(3), article 55, part IX and
article 76(c) of the UN Charter, inter alia.
Human Rights and UN Charter (2)
Human rights are mentioned as early as in the Preamble of the UN
Charter of the United Nations, emphasizing that the UN Organization
seeks “to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and
of nations large and small” and “to promote social progress and better
standards of life in larger freedom”.
The Charter’s operative part contains six articles with explicit
references to human rights, making the subject one of the central
themes of the legal instrument.
In 1948, the Universal Declaration of Human Rights brought human
rights into the realm of international law. Since then, the Organization
has diligently protected and promoted human rights through legal
instruments and on-the-ground activities
Human Rights and UN Charter (3)
• According to Article 1(3), one of the purposes of the United Nations is “to
achieve international co-operation...in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction
as to race, sex, language, or religion.”
• It is self-evident that the Organization is obliged to pursue and try to realize
its purposes.
• At the San Francisco gathering the chairman of the United States
delegation Secretary of State Edward Stettinius expressed the sense of the
Conference when he stated that the purposes listed in Article 1 of the
Charter "are binding on the Organization, its organs and its agencies,
indicating the direction their activities should take and the limitations
within which their activities should proceed."
Human Rights and UN Charter (4)
• Article 1(3) may be compared with a similar provision in Article 55.
“With a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among nations
based on respect for the principle of equal rights and self-
determination of peoples, the United Nations shall promote:
…
c) universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language, or religion.”
Human Rights and UN Charter (5)
Under Article 55(c), the United Nations is obliged to promote a certain
end which is essentially identical with the end which, under Article
1(3), the Organization is obliged to promote and encourage by
achieving international co-operation.
In fact the two articles are more similar in meaning than they may
appear.
On a superficial reading, the obligation imposed on the United Nations
by Article 1(3) relates to the achievement of international co-operation
for the purpose of promoting respect for human rights, whereas the
obligation imposed by 55(c) relates directly to the promotion of this
end itself.
Human Rights and UN Charter (5)
• These two articles may now be compared with Article 76, which
states: "the basic objectives of the trusteeship system, in accordance
with the Purposes of the United Nations laid down in Article 1.
• " These objectives include: c) to encourage respect for human rights
and for fundamental freedoms for all without distinction as to race,
sex, language, or religion...”
• Objective (c) concerns the encouragement of a certain end which is
identical with the end referred to in Article 1(3), and also is essentially
identical with that in Article 55(c). By Article 76(c) the United Nations,
under whose authority the trusteeship system functions, is obliged to
encourage the realization of this end.
Human Rights and UN Charter (6)
• Well, now we understand that the UN is obliged by its own Charter to
pursue the purpose or objective of promoting and encouraging
respect for human rights, what obligation does this fact impose on
the Member States?
• A general kind of understanding of the matter may be achieved by
considering certain provisions in Article 2 of the Charter.
• The article begins with the words: "The Organization and its
Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles"
Obligations of Members of UN (1)
• (1) All Members, in order to ensure to all of them the rights and
benefits resulting from membership, shall fulfill in good faith the
obligations assumed by them in accordance with the present Charter.
• (2) All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter... (3) Nothing
contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic
jurisdiction of any state...”
Obligations of Members of UN (2)
• It may be argued that paragraph (2) merely affirms the Members'
general obligation to fulfil their various obligations under the Charter
- which is tautological and superfluous.
• However, it is important to point out that the principle expressed in
the paragraph is linked to, and must be read in conjunction with, the
introductory words which refer to the purposes of the United
Nations.
Obligations of Members of UN (3)
The underlying idea is that the United Nations' purposes, or rather the
requirement and duty of the Organization to pursue them, imply for all
the Members certain relevant obligations. What obligations? A general
sort of answer is suggested by paragraph (5), namely: obligations in the
form of giving assistance to whatever the Organization does in pursuit
of its purposes.
Obligations of Members of UN (4)
• This must be taken to mean that Member States ought not only to
refrain from obstructing the efforts of the Organization, but also to
participate actively in these efforts.
• If Member States merely refrained from being obstructive, but they
never did anything positive in connection with the purposes of the
Organization, nothing much would ever be achieved.
• It follows, then, that the obligation of the United Nations to make
efforts to develop international co-operation for the purpose of
promoting respect for human rights implies that all Member States
have an obligation to participate actively in these efforts
END