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. Read the rest of this entry…