Sir Nigel Rodley KBE, PhD (Essex) is Professor of Law and Chair of the Human Rights Centre at the University of Essex. He is also Chair of the UN Human Rights Committee.
One can’t begin to answer this question without posing two prior questions:
(1) is there general international law (GIL); and
(2) if so, what are its indicia?
I shall offer brief answers as my personal take on the questions, fully conscious that the answers I choose are likely to predetermine the answer to the specific question posed.
As to the first question, I do believe that there is such a thing as GIL. If I’m wrong, then by definition there is no such thing as general international human rights law (GIHRL). Assuming that there is GIL, then we are confronted by the second question. Here I offer my own understanding of the term. GIL is that set of obligations presumptively binding on all states independently of any treaty-based obligation. So, to find a category of GIL, one would look to any plausible combination of the so-called sources of international law, that is, in addition to treaties, customary international law (CIL), general principles of law, judicial decisions (especially international ones) and doctrine, as found in article 38 of the Statute of the International Court of Justice (ICJ). Evidently, CIL will be crucial, if only because a rule or an area of GIL will need at least not to be inconsistent with CIL.
Coming closer to content, GIL would have to include norms of jus cogens, but that would not close the list. It is significant that one of the few incontrovertible rules of jus cogens is the human right not to be subjected to torture (see Prosecute or Extradite (Belgium v Senegal) in 2012). The prohibitions of genocide, slavery and racial discrimination and, I venture to suggest, discrimination on grounds of gender probably also qualify, as do other ‘non-derogable’ rights. Still, if only jus cogens represented GIL, then that would evidently not be enough to establish a GIHRL. But, by the same token, there would be no GIL of anything. Just a few rules recognized as jus cogens would be the sum total of GIL. One only has to state it, I hope, to demonstrate the unsustainability of the proposition.
Another source of GIHRL would be the sorts of erga omnes obligations that the ICJ famously identified nearly half a century ago in Barcelona Traction as deriving from: ‘the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning its basic rights of the human person, including protection from slavery and racial discrimination.’ The fact that the prohibitions of aggression, genocide, slavery and racial discrimination were all to be found in existing treaties in force perhaps explained the Court’s mentioning them, but was not decisive. The italicized words must be taken as referring to human rights generally. Also very soon afterwards, the UN Charter obligations in articles 55 and 56 became recognized as obligatory, not hortatory (see the 1971 ICJ Namibia Advisory Opinion). And, of course, there is now a substantial network of widely ratified human rights treaties, general and specific, universal and regional.
What, then, is the content of GIHRL? I have slowly come to the conclusion that it consists at least of all the rights proclaimed by the Universal Declaration of Human Rights (UDHR). For a long time, I had my doubts about the right to property, primarily because it was not included in the ICCPR. Now however, in the light of various UN resolutions on the right to property and the fact that no state on earth denies some recognition of an individual right to property, even that anomaly has probably been removed. The foundational nature of the UDHR should not be overlooked. After all, as early as 1980, the ICJ was affirming in the Tehran Hostages case: ‘Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enumerated in the Universal Declaration of Human Rights.’ Thus, a mere decade after Barcelona Traction, the ICJ was giving the UDHR almost equal billing with the UN Charter.
Moreover, just as treaty law may reflect CIL or GIL, I believe universally adopted and broadly universally ratified treaties are good evidence of the content of the broad norms of the UDHR. So, I suggest, would be the practice of treaty bodies established under widely ratified human rights treaties, especially where it coincides with that of regional human rights treaty bodies. Here it is worth recalling that the ‘great weight’ the ICJ attached to the interpretation of their treaties by treaty bodies, such as the ICCPR’s Human Rights Committee (HRC) ‘established specifically to supervise’ the application of those treaties (Diallo 2010, paragraphs 66-68)
Finally, I would also note the existence of the complex network of UN Human Rights Council ‘special procedures’ dealing with some 38 human rights ‘themes’. They assist the Council in holding states accountable for their compliance or otherwise with human rights obligations that, for the most part, must be thought of as legal, not just moral and political. Not all these themes reflect established human rights, nor does every human right yet have its own special procedure. For example, there is not yet one on the right to privacy, but ‘watch this space’! As is now happening, states have to become exercised about an issue before they seek to establish a special procedure on it. Another, perhaps the other, glaring omission from the themes covered by the special procedures is that of the right to participate in government. This is an especially neuralgic issue in respect of the content of which there is bound to be some disagreement. Of course, despite the range of governmental systems represented by the states parties to the ICCPR, the HRC has had no choice but to interpret article 24.
Let me be clear: I do not assert that there is some field of GIHRL that is separate or immune from the same rules of recognition (or other adjectival rules) as the rest of GIL. It is merely an area of GIL, albeit its distinctiveness may affect how those rules are interpreted and applied. My approach is non-fragmentary.
I would add a cautionary note to my generally positive response to the question. Except perhaps for those human rights that are jus cogens, there remains room for some variations in interpretation of the scope of the rights in question and, possibly, for some application of the ‘persistent objector’ rule to generally accepted interpretations. Naturally, no interpretative flexibility can deprive the human rights in question of their core content.