TopicalityThe issue of establishment, authentication and protection of human rights and freedoms is of significant prominence nowadays. The adoption of the Universal Declaration of Human Rights and of subsequent Covenants in 1948 and 1966 respectively, the establishment of the European Court of Human Rights, Inter American Court of Human Rights and African Court of Human and People’s Rights is an example of a growing States’ involvement in the subject-matter. The world community as a hole is undoubtedly concerned with the human rights violations arising in different parts of the globe and is trying to resolve the problem.
But to do so one needs to have defined judicial instruments which can be used to reach the peaceful solution. That’s why having a settled and agreed algorithm of the identification and application of the sources of international law on human rights is so crucial. Brief content
The scope of the present article comprises the problem of the relevance of different sources of international law stated in the Article 38 of the Statute of the International Court of Justice (Statute) in their ability to appear as a solid base for regulation of the issues connected with human rights and freedoms.
Therefore, authors claim that although in “many situations treaty law (I (a) Article 38 of the Statute) provides solid and compelling legal foundation”, to rely on conventions alone would only do harm to the system of international law in respect to the protection of human rights. The article emphasizes that there is a need for some other source of international law that would do the job.
International custom is widely considered to be that source. It has all the prerequisites needed to become a source that would “supply a relatively comprehensive package of norms which are applicable to all States”. Authors give example of Filartiga case where the US Court of Appeal punished a non-American citizen that committed a crime outside the US which was forbidden under international custom.
The decision indicated that in the future custom could become the most authoritative source of international law concerning human rights. But almost right away Mr. Simma and Mr. Alston point out some of the main discrepancies in the doctrine of the customary law. Historically the formation of international custom required for general, consistent and uniform State practice which had a priority over opinio juris.
The two elements were defined criteria to assert the existence of a customary international law. But with time new approaches of identification of the international custom have arisen. The notion of “practice” has undergone a “dubious metamorphosis”. The majority of writers and even the ICJ (Nicaragua judgement) perceive state practice and opinio juris as a paper work (the words, texts, votes).
This leads to the conclusion that opinio juris – a conscious obligation to make an action or to abstain from it, lacks the the status of a decisive element of international custom. State practice is also not that significant anymore, at least when dealing with the issues which derive from infringements of human rights. This is happening partly because of the difficulty to provide the evidences of state practice which would prove that the State abstained from violations of human rights and freedoms. For this reason authors try to bring the reader’s attention to another source mentioned in the Article 38 of the Statute – general principles of international law.
The intention is to presuppose that human rights norms can make it way into international law not through custom, changing the nature of this source, but trough general principles that are recognized by the States. Jus cogens rules on human rights are used as an example. It is stated that to establish a peremptory norms of abstention there should be an acceptance and recognition by the international community of states as a hole which, as authors think, matches the prerequisites of general principles. As a conclusion B. Simma and Ph. Alston strive to reassure the reader that in the process of human rights law-making general principles suit much better that customary international law.
Critical Comments.The article is rather complicated and requires a sufficient prior understanding of the issue of sources in international law. Therefore, it is directed not on regular reader, but on particular audience. Other than that, the article is well structured and as long as you follow the author’s thought it gives you a pretty clear understanding of the matter. The analysis given here is supported by a vast number of citations which proves the authors’ desire to persuade the reader and indicates the amount of conducted work Questions to the authors.
1) Why do you think international custom, as a source of international law, receives a wider support and usage than general principles of law? 2) How does the norm of international law reach the status of jus cogens? 3) Does the protection of human rights by international community infringes the principle of sovereign equality in the case when states-violators are not parties to any treaties on human rights?