What is a ‘source’ of international law and why do human rights lawyers need to understand it?
A source refers to the origins or foundations from which laws are derived (ICJ Statute Art. 38: treaties, customs, general principles, judicial decisions, teachings of highly qualified publicists). Human rights lawyers must know them to identify binding obligations, enforce rights, and argue cases effectively.
What is customary international law?
It is unwritten law derived from general and consistent state practice, followed out of a sense of legal obligation (opinio juris). It binds all states, even those that have not consented to it.
What is a treaty ?
Treaty is a formal, legally binding written agreements (treaties, covenants, conventions) between sovereign states in Int. law. States are bound once they give formal consent (ratification, accession).
- every state possesses capacity to conclude treaties- through authroised representatives with necssary authority-[Art 7(2) VCLT]- w/o necesssray authority= no legal effect
- A state’s consent to be bound by treaty must be made knows to the other party by some positive act
What is Hard Law?
Obligations that are binding involved and can be enforced in Court.
e.g. Treaties and Conventions- ets. eneforceable rights and duties
What is soft law?
Soft law refers to legally non-binding instruments like declarations, principles, and guidelines. Example: UN General Assembly declarations. Unlike treaties, they cannot be enforced in court but guide interpretation.
Give examples of human rights treaties and soft law instruments.
Treaties: ICCPR, ICESCR, CEDAW. Soft law: Universal Declaration of Human Rights, UN General Assembly declarations.
Can a norm be both treaty law and customary international law?
Yes. Some treaties codify existing custom (e.g., Vienna Convention codifies rules of interpretation).
Some treaty norms become custom through widespread acceptance (e.g., UNCLOS provisions).- Treaty CAN CREATE NEW CIL norms
CIL can exist indeoendently of treaty law- not party to treaty but still state camn be held bound equivalent CIL
What is an example of Bilateral and Multilateral Treaty?
- India-South Africa Bilateral Economic Engagement
- Geneva Convention
What is Art. 26 VCLT?
Pacta Sunt Servanda
uphold obligations in good faith
A state cannot invoke prov. of domestic law as jsutification for its failure to perform treaty obligations/terms
What is Art. 2 VCLT?
Requirements of a Treaty to be valid
Art 3
What is General Rule of interpretation of treaties?
shall be inetrpreted in good faith in accordance to the object and purpose
Art 3
What are peremptory norms (jus cogens)?
They are fundamental principle of Int. Law that is accepted by the Int. community of states as one from which no derogation is permitted.
Examples: prohibitions against genocide, slavery, torture.
Art 53 VCLT- trety= void if violates peremptory norm
What are erga omnes obligations?
Obligations owed to the entire international community. Any state can complain of breaches (e.g., genocide). They reinforce accountability for violations of fundamnetal HR that transcend national boundaries- affecting the entire int. community.
How is a treaty drafted and how does it come into force?
Drafted by authorized representatives, adopted/authenticated, consent given by ratification or accession. Enters into force once required conditions are met. Registered and published under Art. 102 of the UN Charter.
treaty enters into force as soon as consent to be bound by treaty is est. (can be otherwise if written in treaty or if negotiating states hv an agreement on another date).
What is the IMPORTANCE OF TREATIES
Clear Framework: Treaties define specific rights and obligations, ensuring accountability.
Universal Standards: They set global human rights standards that all member states commit to.
Legal Obligation: Create binding commitments for states.
Monitoring: Specialized committees oversee compliance and address issues.
Development: Treaties help evolve and refine human rights norms.
Dispute Resolution: They provide mechanisms for resolving human rights disputes.
Global Cooperation: Treaties promote international collaboration on human rights.
How are domestic legal obligations established from treaties?
States must take legislative, judicial, administrative measures. They cannot invoke domestic law to justify failure. Implementation depends on domestic constitutional processes.
Are all states bound under complaints mechanisms?
No. Treaty complaints procedures differ. Some require ratification of an optional protocol (e.g., ICCPR Optional Protocol). Not all states accept these mechanisms.
What is optional protocol?
legal instrument related to an existing treaty that addresses issues not covered or inadequately covered by the main treaty.
States can choose whether and when to join a protocol.
What is the prupose of optional protocol?
(i) They either add new rights that were not covered by the original treaty, or
(ii) Introduce new ways to enforce the treaty’s provisions.
E.g. ICCPR Second Optional Protocol- addressing how detah pealty can be allowed in certain conditions- stataes can choose to completley abolish it as well- states not party to this protocl can remain committed to ICCPR’s general HR Standards
What is the role of General Comments/Recommendations?
They interpret and clarify HR treaty obligations, guide implementation, and provide authoritative understanding though not legally binding.- GUIDE STATES ON THEIR OBLIGATIONS
What are the three types of obligations under ICCPR (General Comment 31)?
- Obligation to Respect (State must not violate rights recognised in ICCPR). 2.** Obligation to Protect (**prevent violations by State agents and private actors). 3. **Obligation to Fulfill **(take legislative, judicial, adm. measures to meet their legal obligations)- article 2
if state fails to prevent or take appropriate emasure or permit or do not exercise due diligenec to prevent, punish or investigate harm casued by private actors.
What remedies must states provide under ICCPR (General Comment 31)?
Accessible and effective remedies, judicial or administrative mechanisms, reparation (compensation, restitution, rehabilitation, non-repetition). Failure to investigate or punish violations itself breaches the Covenant.
What does ‘progressive realization’ under ICESCR mean?
States must take deliberate, concrete, and targeted steps to achieve rights over time, but must immediately guarantee non-discrimination and minimum core obligations (food, health, shelter, education).
What are minimum core obligations under ICESCR (General Comment 3)?
- Every state must meet basic needs- food, health care, shelter, and primary education even with ltd. resources.
- countries shld seek seek an dprovide int. assistance and work together to ensure full relaistaion of these rights-countries with fewer resources can also achive thes on their own
- countries are required to take immediate and deliberate action to ensure fulfillment of Art 2 ICESR.
