“Sources of Human Rights Law: Custom, Jus Cogens and General Principles” by Brunno Simma and Philip Alston.
The 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...
The sources of international law are not the same as those in domestic law. The two major sources creating legally binding rules of international law are treaty and custom. In domestic law the question of the source of a rule or law is seldom controversial. Common law systems rely upon statutes and the decisions to be found in court judgments for evidence of the existence of the rule or law; civil law systems rely upon the appropriate legislation or Codes. It is rarely necessary in either system to inquire whether a legal rule is in fact a legal rule and its existence, if not its interpretation, will be uncontroversial. Exceptionally a further question may arise as to the legitimacy of the rule. If it does it will usually concern the status of the rule that might be affected by procedural defects, or be beyond the power of the body that purported to create it. When such a question does arise there are other rules and procedures that allow for the testing of the validity of the rule in question.1
Various authors have described such domestic systems in terms of primary and secondary rules. The rules that simply govern conduct are the primary rules, while the ‘rules about the rules’ (that is, those used to determine their legitimacy) are said to be secondary. International...
...replacing the HumanRights Act 1998 with a British Bill
of Rights and Responsibilities.
The HumanRights Act 1998 (HRA 1998) is the single most effective piece of legislation, passed in the United Kingdom, which enforced the principles set out in European Convention on HumanRights in British domestic courts. A brief history as to the enactment of such a profound piece of legislation will help us understand the importance of the HumanRights Act 1998, and reasons the current coalition government would consider replacing the HumanRights Act 1998 with a British Bill of Rights and Responsibilities.
After World War 2, and the barbaric atrocities of the Nazi holocaust, European politicians and jurist were convinced that there was a need to forge a new Europe. The foundation of the Council of Europe was inspired by the need to guard against dictatorship, avoid risk of another war and to provide a beacon of hope. The first task was to establish rights for individuals against sovereign states. The code of the European Convention of HumanRights (ECHR) was formed, and the European Court on HumanRights (ECtHR) was established and located in Strasbourg.
This treaty was signed by member states. However, British nationals who wanted to...
A right that is believed to belong justifiably to every person. Humanrights are commonly understood as "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being. Humanrights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone). Theserights may exist as natural rights or as legal rights, in both national andinternational law.
What are humanrights?
Humanrights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our humanrights without discrimination. These rights are all interrelated, interdependent and indivisible.
Universal humanrights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International humanrightslaw lays down obligations of Governments to act in...
What are HumanRights
What are humanrights?
Humanrights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our humanrights without discrimination. T hese rights are all interrelated, interdependent and indivisible. Universal humanrights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International humanrightslaw lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect humanrights and fundamental freedoms of individuals or groups.
Universal and inalienable
T he principle of universality of humanrights is the cornerstone of international humanrightslaw. T his principle, as first emphasized in the Universal Declaration on HumanRights in 1948, has been reiterated in numerous international human...
...Humanrights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Humanrights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone). These rights may exist as natural rights or as legal rights, in local, regional, national, and international law. The doctrine of humanrights in international practice, within international law, global and regional institutions, in the policies of states and in the activities of non-governmental organizations, has been a cornerstone of public policy around the world. The idea of humanrights states, "if the public discourse of peacetime global society can be said to have a common moral language, it is that of humanrights." Despite this, the strong claims made by the doctrine of humanrights continue to provoke considerable skepticism and debates about the content, nature and justifications of humanrights to this day. Indeed, the question of what is meant by a "right" is itself controversial and the subject of continued philosophical debate.
Many of the basic ideas that animated...
...Are humanrights innate and universal?
Post WWII on the 10 December 1948, the Universal Declaration of HumanRights (UDHR) was espoused by the General Assembly of the United Nations in order to agree on the notion that such atrocities that occurred throughout the Great War and the Second World War would not ever be reciprocated. The document that was drawn up in less than two years by the UN and Western states, and although ambitious it would guarantee a premise for life and living for every individual all over the world. The UDHR are founded on nobility, equality and reverence, and are said to be aimed at all cultures and religions within the West and East of the globe. However there is great discrepancy regarding the justification and practicality of humanrights all over the world due to political, economic and cultural differences and limitations. Universal means that ‘something’ affects, applies or is completed by everyone all over the world – there is no distinctive bias shown and equal policies are applied. Innate, in relation to humanrights, means that people are given natural rights purely based on the fact that he/she is human and alive. Therefore, are humanrights universal and innate or is the Universal Declaration of Human...
...Humanrights in today’s world have become pivotal to the functioning of our society as a whole, largely due to the increased occurrences which in turn have led to greater awareness and repudiation of the same in the world community. In present times the humanrights field encompasses a broad range of civil, political, economic and social rights which shows its all pervasive nature, and the accountability for the violation of these rights by state and non-state actors alike. The scope of humanrights in today’s day and age has thus widened considerably as gradually the individual becomes an end in himself and is recognized as being of primordial concern.
Humanrightslaw is a subset in the field of humanrights. Humanrights are what define a society; hence the humanrightslaw takes primacy over all the laws. There is nothing more important than the development of humanrights in an evolving society
Humanrights and criminal law are closely inter - related. My personal interest lies towards humanrights as under the criminal law. Today we see all kinds of crimes being committed- state or non-state,...
...torture is an unacceptable practice.
The aim of this essay is to critically analyse how the Committee against Torture and the HumanRight Committee have both generated a rich jurisprudence on the extent of state obligations related to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment beyond the traditional view of or preventing the use of torture in interrogations.
Torture has received so many international recognition due to its wide use in the Second World War. Torture is clarly defined in section 1 (1) of the Convention against Torture as ‘…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession’. Other explanation of torture is that it ‘…is intended to humiliate, offend and degrade a human being and turn him or her into a thing’.1
There is a wide record of the use of torture since the history of mankind. For example, in the Roman law, it was customary to apply torture as a way of uncovering the commission of a crime.2 Also, there were reports of torture being permitted in situations where a confession was needed for a punishment in Japanese and Chinese criminal code.3. Also, the United Nations in its Special Rapporteur on torture in 1987 to the United Nations HumanRights Commission, indicated that...