Notes taken from materials provided by the Université catholique de Louvain.

Are human rights part of customary international law?

  • Human rights instruments are treaties concluded between states; they are only binding on the parties that have ratified them.
  • Some rules of international law are binding on States even without their consent.
  • Under ICJ Statute art 38 primary sources of international law include:
    • custom (evidence of a general practice accepted as law), and
    • general principles of law recognised by civilised nations.
  • International custom is generally defined as having two elements: North Sea Continental Shelf Cases (Federal Republic of Germany v Netherlands (ICJ, Judgment, 1969).
    • Objectivity — the practice is sufficiently widespread and representative, and
    • Subjectivity — the belief that the practice is rendered obligatory.
  • Arguments that the Universal Declaration of Human Rights is part of customary international law:
    • It has regularly been mentioned in resolutions adopted in multilateral diplomatic conferences including at the UN General Assembly, with a very large majority and no or almost no negative votes or abstentions.
      • Legality of the Threat or Use of Nuclear Weapons (ICJ, 1996):
        • Non-binding UNGA resolutions can have normative value and provide evidence for establishing the existence of an opinio juris.
        • Examination of the content and context is necessary to see whether it has a normative character.
        • A series of resolutions may show the gradual evolution of the opinio juris required.
    • It embodies very important values that are at the heart of the universally accepted norms that form the basis of the international legal order.
      • It may be relevant that a rule is of particular importance to the international community.
      • The US Supreme Court found that the rule according to which coastal fishing vessels were exempt from being captured as prize of war in conflicts had crystallised into a rule of customary international law on the basis that it is ‘founded on considerations of humanity to a poor and industrious order of men’ (ie, the fishers): Paquette Habana, 176 US 677 (1900).
      • The ICJ took the view that the prohibition on the use of force (UN Charter art 3(4)) could be treated as a rule of customary international because of its status as a fundamental or cardinal principle of law: Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits).
  • Arguments that the UDHR is not part of customary international law:
    • Violations of the rights in the UDHR are frequent, indicating compliance is not a widespread practice.
      • However, these are usually denied by the violating state or are claimed to be done in exceptional circumstances or for a legitimate objective.
    • Most violations have not led to protests from other states.
      • However, human rights are not established in favour of states; they benefit individuals under the jurisdiction of the states.
      • States will generally be tempted to look the other way in order to serve their own interests.
  • It is irrelevant that violations have rarely resulted in countermeasures.
    • It is generally agreed that state practice can include protests and not just physical acts.
      • This maintains the equality of states, as not all are capable of adopting physical acts to express discontent.
    • Countermeasures that themselves breach human rights (eg, non-performance of treaty obligations) are prohibited.
      • Vienna Convention on the Law of Treaties art 60(5) does not allow states to suspend the operation of treaties or provisions relating to the protection of the human person in humanitarian treaties.
  • It is also irrelevant that the UDHR has been codified in various UN treaties; this does not preclude the rights from forming part of customary international law.
    • Treaties add value (eg, through monitoring mechanisms) to the rights they codify.
    • It is generally agreed that customary international law can emanate from treaties, either by being widely ratified or reflecting commonly accepted rules.
    • Widely-ratified treaties may lead to the emergence of a new general rule of international law: North Sea Continental Shelf Cases (Germany v Denmark) (ICJ, Judgment, 1969).
  • Human rights are likely to qualify as general principles of law, as described in the ICJ Statute.
    • The UDHR is largely derived from common provisions in liberal constitutions.
    • It has also been replicated to varying degrees into domestic constitutions.