Treaties and Conventions

International Human Rights Law (IHRL) is primarily based on international agreements voluntarily entered into by States. These agreements, known as treaties, conventions, covenants, or protocols, are legally binding on the States that ratify them. They are the most direct and explicit source of international human rights obligations.

Universal Declaration of Human Rights (UDHR), 1948

Adopted by the United Nations General Assembly in 1948, the **Universal Declaration of Human Rights (UDHR)** is the foundational document of modern IHRL. It was the first global expression of the fundamental rights to which all human beings are entitled. The UDHR proclaims a comprehensive set of civil, political, economic, social, and cultural rights.

While the UDHR itself is a declaration and not a legally binding treaty in the strict sense, it has attained immense moral and political authority. It is widely accepted as an authoritative interpretation of the human rights provisions in the UN Charter. Many of its principles are considered to have passed into customary international law, making them binding on all States. The UDHR has inspired numerous national constitutions and international human rights treaties.

International Covenant on Civil and Political Rights (ICCPR), 1966

The **International Covenant on Civil and Political Rights (ICCPR)** is a legally binding multilateral treaty adopted by the UN General Assembly in 1966 and entered into force in 1976. It elaborates on the civil and political rights enumerated in the UDHR and transforms them into legal obligations for the States parties that have ratified it.

The ICCPR protects rights such as:

• Right to life
• Freedom from torture, cruel, inhuman, or degrading treatment or punishment
• Freedom from slavery and forced labour
• Right to liberty and security of person, freedom from arbitrary arrest or detention
• Right to a fair trial
• Freedom of thought, conscience, and religion
• Freedom of opinion and expression
• Freedom of peaceful assembly
• Freedom of association
• Right to privacy
• Right to marry and found a family
• Rights of children
• Right to participate in public affairs and vote
• Equality before the law and non-discrimination
• Rights of minorities

States parties to the ICCPR are obligated to respect and ensure these rights to all individuals within their territory and subject to their jurisdiction. The implementation is monitored by the Human Rights Committee.

International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966

Adopted alongside the ICCPR in 1966 and entered into force in 1976, the **International Covenant on Economic, Social and Cultural Rights (ICESCR)** is also a legally binding multilateral treaty. It elaborates on the economic, social, and cultural rights enumerated in the UDHR and transforms them into legal obligations for States parties.

The ICESCR protects rights such as:

• Right to work under just and favourable conditions
• Right to social security
• Right to an adequate standard of living, including adequate food, clothing, and housing
• Right to health
• Right to education
• Right to participate in cultural life
• Right to benefit from scientific progress
• Rights related to trade unions

States parties to the ICESCR are generally obligated to take steps to the maximum of their available resources, with a view to achieving progressively the full realisation of these rights. The implementation is monitored by the Committee on Economic, Social and Cultural Rights.

Together, the UDHR, ICCPR, and ICESCR form the core of the **International Bill of Human Rights**.

Core Human Rights Treaties (CEDAW, CRC, CAT, CERD, CRPD, CED)**

In addition to the two main Covenants, a series of other core international human rights treaties have been developed under the auspices of the UN to address specific themes or protect particular groups. These treaties are also legally binding on the States that ratify them. Key core treaties include:

• **CEDAW: Convention on the Elimination of All Forms of Discrimination against Women (1979):** Protects the rights of women and aims to eliminate discrimination against women in all fields.
• **CRC: Convention on the Rights of the Child (1989):** Protects the civil, political, economic, social, health, and cultural rights of children (persons under 18).
• **CAT: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984):** Prohibits torture and other ill-treatment and requires States to take measures to prevent and punish such acts.
• **CERD: International Convention on the Elimination of All Forms of Racial Discrimination (1965):** Aims to eliminate racial discrimination in all its forms.
• **CRPD: Convention on the Rights of Persons with Disabilities (2006):** Protects the rights of persons with disabilities and promotes their full and equal participation in society.
• **CED: International Convention for the Protection of All Persons from Enforced Disappearance (2006):** Prohibits enforced disappearance and establishes rights for victims and their families.
• **ICRMW: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990):** Protects the rights of migrant workers and their families.

Each of these treaties establishes a monitoring body (a treaty body committee) that reviews the implementation reports of States parties and issues recommendations.

Treaties and conventions are a primary source because they create direct legal obligations for the States that ratify them, making the rights contained therein enforceable under international law and providing a basis for incorporation into domestic legal systems.

Customary International Law

Besides treaties, **Customary International Law** is another significant source of International Human Rights Law. Unlike treaties, which are binding only on States that have ratified them, rules of customary international law are generally binding on **all States**, regardless of their consent.

State practice and *opinio juris*

Customary international law is formed through the general practice of States followed out of a sense of legal obligation. It has two main elements:

• **State Practice:** This refers to the consistent and widespread conduct of States. It can be evidenced by various acts, including national laws and court decisions, diplomatic correspondence, statements in international forums, military manuals, and the practice of entering into treaties. The practice must be relatively uniform and consistent, although minor inconsistencies might not necessarily prevent the formation of a custom.
• ***Opinio Juris sive Necessitatis* (Opinion of Law or Necessity):** This is the psychological or subjective element. It means that States follow the practice not merely out of courtesy, tradition, or political expediency, but because they believe it is legally required. There must be a sense of legal obligation behind the practice.

The combination of consistent State practice and *opinio juris* leads to the formation of a rule of customary international law.

Prohibition of torture, genocide, slavery

Certain fundamental human rights are widely recognised as having attained the status of customary international law because of widespread State practice and the universal acceptance of their obligatory nature (*opinio juris*). These rights are considered binding on all States, even those that have not ratified the relevant treaties. Examples include:

• **Prohibition of Torture:** The absolute prohibition of torture and cruel, inhuman, or degrading treatment is considered a peremptory norm of international law (jus cogens), meaning it is a fundamental principle from which no derogation is permitted. This prohibition is binding on all States.
• **Prohibition of Genocide:** The prohibition against genocide (acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group) is also a peremptory norm of international law and binding on all States.
• **Prohibition of Slavery and Slave Trade:** The prohibition of slavery, the slave trade, and forced labour is a long-established rule of customary international law, universally binding.
• **Prohibition of Racial Discrimination:** While CEDAW provides a treaty basis, the core principle of prohibiting racial discrimination is also widely accepted as customary international law.
• **Basic Principles of Due Process:** Certain fundamental aspects of the right to a fair trial, particularly in criminal proceedings, may also be considered part of customary international law.

While the scope of human rights that have attained customary status can be debated, those considered fundamental and universally accepted are generally recognised as binding on all States through this source of law.

Customary international law complements treaty law by providing a legal basis for human rights obligations that apply universally, ensuring that no State is entirely exempt from fundamental human rights standards simply by not ratifying treaties.

General Principles of Law

In addition to treaties and customary international law (which are considered primary sources), **General Principles of Law recognized by civilized nations** are listed in Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) as a source of international law. While not a primary source in the same way as treaties or custom, general principles serve as a supplementary source to fill gaps or address issues not explicitly covered by treaties or custom.

Role in International Human Rights Law (IHRL):

General principles of law play a role in IHRL by providing fundamental legal concepts and procedural standards that are common to most domestic legal systems and are considered applicable in the international sphere. These principles ensure fairness, justice, and predictability in the application of international law, including human rights law.

Examples of General Principles Relevant to IHRL:

• **Principle of good faith:** States are expected to perform their treaty obligations in good faith.
• **Principle of proportionality:** Restrictions on rights must be proportionate to the legitimate aim pursued.
• **Principle of non-discrimination:** A fundamental principle underlying many human rights, prohibiting arbitrary differential treatment.
• **Principle of *pacta sunt servanda* (agreements must be kept):** The fundamental rule of treaty law that treaties are binding on the parties and must be performed in good faith.
• **Principles of due process:** Fundamental notions of procedural fairness in legal proceedings, such as the right to be heard, the right to an impartial tribunal, and the right to a reasoned decision.
• **Principle of *res judicata* (a matter judged):** Prevents re-litigation of issues already decided by a competent court.
• **Principle of estoppel:** Prevents a party from going back on its own previous statements or conduct if another party has relied on them to its detriment.

These principles are derived from the common legal heritage of nations and are applied to ensure equity and consistency in international law. While not as extensive a source as treaties or custom, they provide a necessary backdrop and interpretative guide for the application of IHRL.

Judicial Decisions

Judicial decisions, while not creating new law in the same way as treaties or custom, are listed in Article 38(1)(d) of the ICJ Statute as a **subsidiary means for the determination of rules of law**. This means that the decisions of courts, both international and national, play a crucial role in interpreting and applying the rules of IHRL. They clarify the scope and meaning of human rights provisions and contribute to the development of jurisprudence.

International Courts (ICJ, ICC)

• **International Court of Justice (ICJ):** The principal judicial organ of the UN, the ICJ primarily decides disputes between States and gives advisory opinions on legal questions referred by UN organs. While the ICJ does not exclusively deal with human rights, its decisions and advisory opinions can touch upon and interpret human rights principles, particularly when they are relevant to disputes between States (e.g., issues related to diplomatic protection, treatment of foreign nationals, or compliance with human rights treaties in specific contexts).
• **International Criminal Court (ICC) / Ad hoc Criminal Tribunals:** Courts like the International Criminal Court, International Criminal Tribunal for the former Yugoslavia (ICTY), and International Criminal Tribunal for Rwanda (ICTR) prosecute individuals for grave international crimes, including genocide, crimes against humanity, and war crimes. Their jurisprudence significantly contributes to the understanding and enforcement of fundamental human rights principles, particularly civil rights like the right to life, freedom from torture, and fair trial rights, in the context of international criminal law.

Regional Courts (ECHR, IACHR)

Regional human rights courts are highly significant sources of interpretation for IHRL within their respective regions. Their case law directly applies and develops human rights law based on regional treaties:

• **European Court of Human Rights (ECHR):** Established under the European Convention on Human Rights, the ECHR hears applications from individuals and States concerning alleged violations of the Convention. Its extensive jurisprudence has profoundly shaped the understanding and application of civil and political rights in Europe, influencing legal developments beyond the region as well. Its decisions are binding on the States parties concerned.
• **Inter-American Court of Human Rights (IACHR):** Established under the American Convention on Human Rights, the IACHR hears cases concerning violations of the Convention in the Americas. Its judgments and advisory opinions interpret the rights guaranteed in the American Convention and other regional human rights instruments. Its decisions are binding on the States parties to the case.
• **African Court on Human and Peoples' Rights:** Established under the African Charter on Human and Peoples' Rights, this court also contributes to the interpretation and enforcement of human rights within Africa.

National Courts interpreting International Law

The decisions of national courts also play a role, particularly when they interpret and apply international human rights treaties that have been incorporated into domestic law, or when they apply principles of customary international law. National court decisions can provide valuable insights into how international standards are being understood and implemented at the domestic level. In common law systems, decisions of higher courts can also serve as precedents for lower courts in interpreting and applying both domestic human rights legislation and incorporated international law.

Judicial decisions, especially from international and regional human rights courts, are authoritative interpretations that guide States and other actors on the meaning and scope of their human rights obligations.

Teachings of Publicists

Article 38(1)(d) of the ICJ Statute also lists the **teachings of the most highly qualified publicists of the various nations** as a subsidiary means for the determination of rules of law. Publicists refer to renowned scholars, academics, and experts in international law and human rights. Their writings, commentaries, and analyses contribute to understanding, interpreting, and systematising international human rights law.

Contribution to IHRL:

• **Interpretation and Analysis:** Scholarly writings provide in-depth analysis of human rights norms, their origins, scope, and application. They help clarify complex issues and nuances in the law.
• **Identification of Trends:** Publicists often identify emerging trends in State practice and *opinio juris*, contributing to the recognition and development of customary international law.
• **Critique and Development:** Academic commentary can critically assess the existing law and propose ways for its development and improvement, influencing policymakers and courts.
• **Systematisation:** Scholarly works help in systematising the vast body of human rights law, making it more accessible and understandable.

While not legally binding in themselves, the teachings of respected publicists carry significant persuasive authority. Courts and practitioners often refer to scholarly works to support their arguments and interpretations of international human rights law.

Soft Law Instruments

**Soft law** instruments are non-binding international instruments that, while not creating direct legal obligations, nonetheless play a significant role in shaping, developing, and interpreting international human rights law. They express shared values, set standards, and influence the conduct of States and other actors.

Declarations, Guidelines, Recommendations

Examples of soft law instruments relevant to IHRL include:

• **Declarations:** Such as the Universal Declaration of Human Rights (UDHR) itself (initially intended as a declaration), the Declaration on the Right to Development, and numerous other declarations adopted by UN organs. Declarations proclaim principles and standards but are not treaties.
• **Guidelines:** Issued by international bodies on specific topics, providing guidance on how certain human rights norms should be implemented or interpreted (e.g., UN Guiding Principles on Business and Human Rights).
• **Recommendations:** Issued by UN treaty bodies, UN Special Procedures, or other international bodies. While not legally binding, recommendations carry moral and political weight and States are expected to consider them.
• **Resolutions:** Adopted by organs like the UN General Assembly or Human Rights Council. Resolutions can express the opinion of States on human rights issues, endorse specific standards, and call for action.
• **Codes of Conduct, Principles, Standards:** Developed by international organisations or expert bodies on specific issues related to human rights.

Influence of Soft Law:

• **Catalyst for Treaty Law:** Many soft law instruments, like the UDHR, have served as a basis for the drafting of legally binding treaties (e.g., the UDHR led to the ICCPR and ICESCR).
• **Interpretation:** Soft law instruments can provide authoritative interpretations of the scope and meaning of rights contained in binding treaties and customary law.
• **Development of Customary Law:** Widespread adherence to the principles articulated in soft law instruments can, over time, contribute to the development of customary international law if accompanied by *opinio juris*.
• **Guiding State Conduct:** Soft law provides guidance to States on best practices and expected standards of behaviour even in areas where binding legal obligations may not yet exist or are unclear.
• **Basis for Advocacy:** Human rights advocates use soft law instruments to pressure governments and other actors to improve their human rights practices.

While not directly enforceable as legal obligations, soft law instruments are indispensable for the evolution and practical application of international human rights law, complementing the primary sources of treaties and customary international law.