magnify
Home Articles posted by Başak Çalı, Lorna McGregor and Ivana Radačić

ESIL-IHRL Online Symposium: Is There General International Human Rights Law?

In June 2014, we launched the ESIL-IHRL interest group online symposia.  In our first blog post we identified three overarching challenges for researchers of international human rights law. These are resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.  We start our symposia with a basic question about international human rights law (a question that cuts through both resistance to contentment as a sub-branch and internal fragmentation): Is there general international human rights law?

Any question of general international law queries which international laws attain sufficient generality as to bind all members of the international community. General international law is distinguished from particular international law. The latter only binds a small number of state parties to treaties. Some also argue that there is a third category in between: some norms can be ‘more or less general’. That is they bind a large number of states – including major powers (Oppenheim-Lauterpacht, International Law: A Treatise, Vol. I, 1948, 4-5). Whether one agrees with a definition of general international law and how one accesses it is a matter of controversy. Some hold that general international law is just another name for customary international law (see, famously, Brownlie, ‘Problems Concerning the Unity of International Law, in A. Giuffre ed. International Law in the Time of its Codification. Essays in Honour of Roberto Ago (1987) VoL 1,15). Others argue that general international law is a hybrid form of international law made up of both customary law and conventional law of a general character (Tunkin, ‘Is general International Law Customary Law only?’ 4 European Journal of International Law (1993) 534-541).

In the field of international human rights law, perhaps due to the availability of a diverse number of specialised interpretive bodies ranging from regional human rights courts to UN human rights committees, this question has not been at the forefront of debates within the sub-discipline. Yet, the question of  ‘is there general international human rights law’ is not only timely but also in need of a deeper analysis. This is down to  a) the nearly universal ratification of the United Nations Human Rights treaties and b)  the new turn towards holistic interpretations of human rights law, either through comparative methods à la the European Court of Human Rights (seen most recently in the case of  Centre for Legal Resources on Behalf of Valentin Campeanu v. Romania), or through explicit provisions to take other international human rights law obligations of state parties into account (Article 29(b) of the American Convention on Human Rights and Article 7 of the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights). From the perspective of the domestic judge, the question of what the wide array of international human rights obligations amounts to as a whole when interpreting rights also has urgent practical importance. Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
 

ESIL Interest Group on Human Rights Launches Online Symposia on International Human Rights Law

Basak2 Dr. Başak Çalı (pictured above left) is Associate Professor of International Law at Koç Univerlmcgregor-53sity, Turkey. Lorna McGregor (pictured right) is a Reader in Law and Director of the Human Rights Centre at the University of Essex School of Law. Ivana Radačić (pictured below left) is a senior research associate at Ivo Pilar Institute of Social Sciences in Zagreb and Radacic_foto_CVa visiting lecturer at the University of Zagreb, the University of Osijek, the European Inter-University Centre for Human Rights and Democratisation (Venice). They are the Founding Co-Chairs of the European Society of International Law’s Interest Group on International Human Rights Law.

The theme of this year’s ESIL annual conference is ‘International Law AND …’  It takes place in a year of conferences seemingly devoted to ‘taking stock’ of the current state of international law and assessing the future opportunities and challenges it will face (see the recent ASIL-ILA conference on the Effectiveness of International Law and last week’s ILA British Branch conference on Foundations and Futures of International Law).

In establishing the ESIL Interest Group on Human Rights, we wanted to ‘take stock’ of International Human Rights Law and in doing so, to ask the big structural, procedural and substantive questions that are necessary to determine its future.  We plan to hold conferences like our inaugural roundtable on ‘International Human Rights Law AND…’ at the ESIL annual conference in Vienna in September and to encourage debate and discussion through online symposia, particularly on EJIL Talk! and other academic and practical projects.

Before our discussions even begin, however, we have to be clear on how we understand international human rights law. We regard international human rights law as a field that is simultaneously positioned both within public international law and across other disciplines.   International human rights law is substantial but nonetheless a sub-branch of public international law as well as part of a large and growing interdisciplinary ‘field’ of human rights.  Characterising international human rights law in this way is often overlooked but gives a much more textured and nuanced picture of its operation and the challenges it faces through resistance to containment as a sub-branch; internal-fragmentation; and interdisciplinary expansion.

Resistance to Containment to a Sub-Field  

The presentation of international human rights law as a sub-branch conceals its dominance within public international law making it a much bigger project than a ‘sub-branch’ would suggest.  Read the rest of this entry…