S2 Sources of International Law Flashcards
what is the primary source of international law?
Treaty
who enforces international law?
this is the role of international institutions such as UN Charter bodies and Treaty bodies
what is international law?
is the body of rules which regulates a state’s conduct in relation to other state on the international levels.
what’s the subject of international law?
states, not individuals
what makes countries bound under a treaty?
consent
Dualist state?
international and domestic laws are seperate
Eg; Al-Kateeb case
what does dualist state mean for Australia?
Strict seperation between domestic and international law
Alleged breach of international law cannot be determined by domestic court - only by an international tribunal such as UN body
Can individuals from dualist system bring complains before UN ?
Usually not, States have laws to protect the rights of their citizen
Exception - individual complaints mechanism under Optional Protocol 1 of ICCPR
The main sources of International law under?
Art 38 of Statute of the International Court of Justice (ICJ)
The main sources of International law?
- Treaties
- International Custom
- the general principle of international law recognised by civilised nations
- Judicial decisions and the teachings of the most highly qualified publicists
International law forms?
1- Treaties and conventions
2- Customary International Law
Bill of Rights;
- UDHR
- ICCPR
- ICESCR
what is Customary international law (CIL)?
‘unwritten law’ - based on the actual practice of the states, rather than a written document
is Customary Law as biding as a Treaty?
yes, but difficult to prove it’s existence and consent
is consent a requirement for customary law?
No consent or agreement required
Requirement for proving CIL?
1- Unambiguous and uniform state practice - followed by significant number of states over a significant period of time
2- Subjective Belief by states that this practice is mandatory (Opinio Juris) - followed out of a sense of legal obligation
Opinio Juris?
“an opinion of law or necessity.”
what was the first Universal statement of UN?
UDHR
Content of UDHR consists of
preamble and 30 articles setting forth the human rights and fundamental freedoms to which all men and women everywhere in the world are entitled without discrimination: liberty, equality in dignity and rights, security, non- discrimination and a host of civil and political rights (Arts 4-21) as well as economic, social and cultural rights (Arts 22-27)
Among the rights and freedoms named in the UDHR are:
the right to life, liberty and security of person
equality before the law
the right to freedom of movement and residence
freedom from torture and cruel, inhuman or degrading treatment or
punishment
the right to seek asylum in other countries
freedom of thought, conscience and religion
the right to own property
the right to education
the right to work and to form and join trade unions
the right to an adequate standard of living
the right to health care
the right to freely participate in the cultural life of the community 12
when did UDHR declared?
UDHR is a declaration of the UN General Assembly adopted
on 10 December 1948
several aspects of the UDHR are by operation of process of CIL, binding upon all states. These are generally thought to include prohibition against slavery, genocide, torture, arbitrary detention and systematic racial discrimination.
is UDHR a treaty or convintion?
No
Main source of International Law?
Treaties - Only treaties can create (& define powers of) international institutions (such as UN) to monitor, implement & enforce international law
Main 2 human rights treaties?
International Covenant on Civil and Political Rights 1966 (ICCPR)
International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)
are both main treaties multilateral (many parties) ?
yes, ICCPR- currently 172 parties (116 parties to first optional protocol)
ICESCR- currently 169 parties
similarities between two main conventions?
- Preamble and Articles 1, 3 & 5 are very similar
- Note the similarities between the right to self-determination in each of the treaties
- Art 1, ICCPR; Art 1, ICESCR
‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’
Difference between two main conventions?
Art 28 ICCPR – provides for establishment of Human Rights Committee responsible for supervising implementation of rights set out in Covenant
ICESCR does not provide for establishment of treaty monitoring body
ICCPR art 6?
the right to life
ICCPR art 7?
freedom from torture and cruel, inhuman or degrading treatment or punishment
ICCPR art 8?
freedom from slavery and compulsory labour
ICCPR art 9 v 11?
the right to liberty and security of person
ICCPR art 12?
the right to freedom of movement
ICCPR art 13?
legal aliens to protection from expulsion/deportation
ICCPR art 14?
a fair and public trial
ICCPR art 15?
criminal law can not be retroactive
ICCPR art 16?
recognition as a person before the law
ICCPR art 17?
privacy
ICCPR art 18?
freedom of thought, conscience and religion
ICCPR art 19
opinion and expression
ICCPR art 21?
freedom of assembly and association
ICCPR art 23
marry and to find a family
ICCPR art 24
protection of children
ICCPR art 25
right to political participation
ICCPR art 26
freedom from discrimination
ICCPR art 27
rights of person belonging to ethnic, religious and linguists minorities
ICESCR art 6
work
ICESCR art 8
form and join trade union
ICESCR art 9
social security and social insurance
ICESCR art 10
protection of family
ICESCR art 11
right to adequate standard of living
ICESCR art 12
medical care
ICESCR art 13
the right to education
ICESCR art 15
the right to take pat in cultural life
which treaty is seen as ‘first generation human right’?
ICCPR - They emerged in the 18th century during the French and American revolutions (e.g. Right to life, liberty, fair trial and fundamental freedoms such as expression and conscience)
which treaty is seen as ‘second generation human right’?
ICESCR- They emerged in the late 19th century with social reform in Europe (e.g. right to education, housing, social security, safe and healthy working environment, leisure and rest)
‘Third generation rights’ exist?
it is emerging as solidarity rights, such as right to a healthy/safe environment conducive to development
Major difference between ICCPR & ICESCR:
ICCPR imposes immediate obligations
ICESCR imposes obligations which are ‘progressive’ & subject to ‘available resources’. But not always so clear cut.
implementing rights may involve?
- Passing new legislation e.g. Racial Discrimination Act 1975 (Cth); or
- Repealing legislation (such as Tasmanian criminal laws involved in Toonen case)
- Changing policies & allocating resources
not all Human rights are ‘absolute’ under ICCPR - Scope of Rights?
can be limited;
- Limitation in the terms of Right
- Reservations
- Derogations
is Freedom of Expression limited under ICCPR?
Yes, freedom of expression is subject to respect for the rights and reputation of others, public orders etc
example of “internal limitation” on rights under ICCPR?
- Freedom of Expression
- Liberty
what is arbitrary detention means under international law?
arbitrary detention covers detention that is imposed inconsistently with relevant international standards.
Basically, arbitrary detention is the violation of right of liberty as an individual is being arrested without any evidence of them committing a crime against statute law or international law.
Example of legitimate/allowed deprivation of liberty;
- person convicted of serious offences
- mentally disturbed person
- state of emergency
