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

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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.

The question of general international law in the human rights field generates a series of secondary questions both with regard to where, potentially, one locates general international law and what is ‘general’ about general international human rights law:

  • If there is general international human rights law, where does it come from and what is its content?
  • Does general IHRL extend to interpretive principles of IHRL – the principle of evolutive interpretation (living instrument character of treaties), the principle of positive obligations, the principle of interpretation autonomous from domestic law and the principle of effectiveness?
  • What are the implications of making arguments concerning general international law for the place of international human rights law in public international law?

In this symposium we have two members of the ESIL-IHRL interest group, Professor Sir Nigel Rodley (University of Essex & Chair of the UN Human Rights Committee) and Professor Eva Brems (University of Ghent), together with an external observer of IHRL’s inroads into public international law more generally respond to the question ‘Is there general international human rights law?’ from interpretative, inter-disciplinary and critical perspectives.

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Jordan says

October 15, 2014

Perhaps one should start with the U.N. Charter, arts. 55(c) and 56 (incorporation customary human rights by reference) with an Article 103 override. And, of course, customary human rights law, including customary human rights jus cogens.

El Arbi Mrabet says

October 23, 2014

Maybe one should consider another aspect of a would be and desired ''generality'' of IHRL: that linked to the psychological element necessary to the formation of customary internaitonal law and which should extend, beyond classical actors or subjects of IL (the states) to the peoples who form a part of the latter and live under their banner.In this century termed as ''religious'' by many, and despite the progress accomplished in this field, thanks to NGOs, is not sure that the huge majorities of peoples in the developing countries, seeking refuge and comfort in what they believe is religion because they are ignorant, uneducated, poor, etc. has the same understanding of human rights as the peoples of developed countries. It is less sure that parliamentarians, elites, decision-makers at both political and economical levels (which often are tightly woven)have really adhered (psychologically ''integrated'')to Human Rights as such, and are willing to promote them as long as they prioritize their interests and wishes. Even when they are compelled to issue laws that conform to international instruments their governments have ratified or adhered to, they do not much to implement them, or even educate the people to them through means of informaion, education, training, juridical assistance, etc. On the other hand, there people who refuse the latter when their government is willing to do so.Yes the existence of IHRL -like any other international law- does not depend on its implementation, but its cultural, psychological acceptance by peoples counts for that of a general IHRL. Furthermore, when they see democratic governments practice double standard politics,they are more skeptical about the ''generality'' of this same IHRL and are not ready to ''interiorize'' it as a genuine human (proper to manhood) value.