Human Rights as IL

Question 1

Sources of International law

Answer 1

1. Treaties: International agreements that have the source of law, undertaking the legal obligation to follow the prescriptions in the treaty. Legally binding by virtue of the norm that says all intl agreements are legally binding. State consent is key.
2. Customs: Unwritten, as a result of behaviour. State consent is key.
3. General principles of law: Legal principles that come from domestic systems or intl legal systems themselves. Typically used to fill gaps left by treaty and customary law.
4. Also judicial and jurists’ opinions

Question 2

The process of treaty making

Answer 2

1. Negotiation: Two or more states get together and negotiate a contract.
2. Signature: All state representative sign the treaty, which gives preliminary consent, but not legal obligation to the treaty. Gives obligation to not act in contrary to purpose of the treaty.
3. Ratification: Key moment in which you become a party to the treaty, and the provisions in the treaty become legally binding to you.
4. Implementation: For the implementation of human rights, some actions may be needed.
5. Enforcement: Your behaviour must be in line with the treaty or else you are in violation of the treaty.

Question 3

The sources of international (human rights) law

Answer 3

International customs –> behaviour + opinio juris
Opinio juris: states behave in a particular way because they felt compelled to do so because of customary international law. In intl customary law, consent is not given by signing or ratifying a document, consent is inferred from behaviour itself.

Question 4

Acquiescence

Answer 4

Tacit acceptance if you did not protest against the norm, your silence is taken as that you are giving your consent to your norms. The only way to not be bound by a customary rule is by protesting consistently against that rule.

Question 5

Jus Cogens or Peremptory Norms

Answer 5

List of rules that are an exception to consent being required. These are legally binding for all states whether they like them or not. Prohibition of genocide, torture, slavery

Question 6

Subsidiary sources of international law

Answer 6

Not sources that stand by themselves, but they are going to be used to interpret treaty law or customary law. Judicial decisions, writings of jurists.

Question 7

Judicial interpretation as law-making

Answer 7

In theory, judges or judicial authorities are not supposed to make the law. However, particularly in human rights law, the treaty is what the institutions make of it.

Question 8

The “special character” of international human rights law: Erga omnes obligations

Answer 8

Obligations owed to everyone (international community as a whole, not just the parties who ratified the treaty).

Question 9

The “special character” of international human rights law: A national “margin of appreciation” (ECtHR)

Answer 9

An idea that came from the European Court of Human Rights. Implies that when we apply a human rights treaty, one has to take into account the context in which the treaty is applied. There is a margin left in the exact obligation of the treaty which is left up to the State to decide. We take from the universalist opinion that there are the same standard to be applied to everyone, but we take form the relativist view that the specifics of how far it is go to varies from contexts.

Question 10

The “special character” of international human rights law: Limitations of derogations

Answer 10

Under certain situations, the obligations under the human rights treaties may be temporarily paused. But there are certain rights that are non-derogable.

Question 11

The “special character” of international human rights law: Withdrawal (legal constraints and political costs)

Answer 11

Typically because Intl law is a consent-based law, parties can usually withdraw from a treaty. But not every human rights treaty allows for this (e.g. ICCPR). Because the drafters of the treaty decided to say nothing about withdrawal, they meant that it was impossible. Withdrawing from a human rights treaties sends a signal of rejection of human rights standards, which are typically associated with political costs. Can also have domestic political costs.