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o The judge will have to assess the existence of one objective element consisting of the general
practice and one subjective element, that there is a belief among states as to the legally binding
SOURCES OF INTERNATIONAL LAW; nature of this practice
o North continental shelf case. (OE) What constitute a practice? short though it might, state
1. International treaties practice includes states whose interest are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked;
o In the human rights field, the most important tool for judges , prosecutors and lawyes to consult, o and should have occurred in such a way as to show a general recognition that a rule of law
apart from existing domestic law, is no doubt the treaty obligations incumbent on the state or legal obligation is involved.
within whose jurisdiction they are working. o Nicaragua v. US
o A TREATY; o Soften the OE interpretation, with greater emphasis of opinion juris in relation to the use of
-is generally legally binding, written agreement concluded between states, but can also force.
bean agreement between, for instance, the United Nations and a state for specific purposes. o the court say, in order to deduce the existence of customary rules, it is sufficient that the
o Treaties have different names such as; conduct of the states should, in general, be consistent with such rules, and that instances of
-convention; state conduct inconsistent with a given rule should generally have been treated as
- covenant; breaches of that rule, not indications of the recognition of new rule.
- protocol or pact but the legal effects are the same. o What legal principles for the protection of the human person might have been considered to form
o At international level, a state establishes its consent to be bound by a treaty principally through part of customary international law by the ICJ?
ratification, acceptance, approval or accession, only exceptionally is the consent to be o In the advisory opinion of 1951 on Reservations to the Convention on Genocide, the
bound expressed by signature. court held the principles underlying the convention are principles are recognize as
o Signature. The function of signature of a treaty is often that of authenticating the text, and binding on states even without any conventional obligation.
creates an obligation on the states concerned to refrain from acts which would defeat the o In 1951 the crime genocide was already part of customary international law, applicable to
object and purpose of the treaty. all states.
o Pact sunt servanda. o Barcelona traction case. essential distinction between the obligation of the stae towards
o Once a treaty has entered into force and is binding upon the states parties, these must international community as a whole, and those arising vis--vis another state in the field of
perform the treaty obligation in good faith. diplomatic protection.
o This implies, that the state cannot avoid responsibility under international law by invoking of -By their very nature the former are the concern of all states, and in view of the importance of
its internal laws to justify its failure to perform its international obligation. the rights involved, all states can be held to have legal interest in their protection; they are
o International human rights law, state responsibility is strict I that state are responsible for obligation erga omnes.
violations of their treaty obligations even where they were not intentional. -Basic human rights obligation form part of customary International Law.
o Human rights treaties -The crimes of genocide and aggression as well as the prohibition of racial discrimination, slavery,
o Are law-making treaties of an objective nature in that they create general norms that are the arbitrary detention and physical hardship as forming part of a universally binding corpus of law, it
same for all states parties. has not limited the scope of the law to these elements.
o These norms have to be applied by a state party irrespective of the state of implementation o General Assembly resolutions.
by other states parties. o Universal Declaration of Human Rights, although not a source of law they can provide
o The traditional principle of reciprocity does not apply in human rights treaties. evidence of customary law.
o Human rights treaty must be interpreted on the basis of teleological and holistic approach by o Peremptory norms (jus cogens)
searching for an interpretation that respects the rights and interest of the individual and is -Prohibition against slavery may be considered as peremptory norms.
also logical in the context of treaty as a whole. -According to article 53 of Vienna convention on the law of treaties, a treaty is is simply
o 2 example of human rights treaties are; International covenant on civil and political and on void if , at the time of its conclusion, it conflict with a peremptory norm of international law.
economic, social and cultural rights. -such norm is describe which no derogation is permitted and which can be modified by
subsequent norm of general international law having the same character.
2. International Customary Law
3. General Principles of law recognize by the community of nations
o International customary law legal obligations binding upon states are thus create when there is
evidence of both; o General principle of law, as a source of IHRL, is a lgal proposition so fundamental that ut can be
1. Acts amounting to a settled practice of states; and found in all major legal systems throughout the world.
2. A belief that this practice is rendered obligatory by the existence of rule of law requiring it;
(opinion juris) -when states adhere tp a particular legal principle which provides for human right or which is essential
to the protection thereof, the, this illustrates the existence of legally binding principle under IHRL.

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4. Judicial deciosn and the Teachings of the most highy qualifiedpublicists.
o As a subsidiary means for the determination of rules of law.
o Judicial decisions are particularly important for full understanding of the law,a dn the wealth of
international case-law that now exists in this field must regarded as authoritative evidence of the
state of the law.
o however, neither the ICJ & international monitoring organs in the human rights field are obliged
to follow previous judicial decision
International Human Rights law and international humanitarian law; common concern and basic
differences
HUMAN RIGHT LAW INTERNATIONAL HUMANITARIAN LAW
-aimed at protecting the individual. -aimed at protecting the individual.
1. Provides non-discriminatory treatment to 1. Aimed at ensuring the minimum protection to
everybody at all times , whether in peacetime o in victims of armed conflict, such as sick, injured,
times of war or other upheaval. shipwrecked and prisoners of war, by outlawing
2. excessive human suffering and material destruction
in the light of military necessity.
2. less egalitarian in nature.
-In international and non-international armed conflict, international human rights law and humanitarian law
will apply simultaneously.
Reservations and interpretative declarations to international human rights treaties.
o Under the international covenant on civil and political rights and the American convention on
Human rights, Reservation must be compatible with the object and purpose of the treaty.
o The European Convention on Human Rights forbids reservation of general character. Reservations
must relate to a specific provision of the convention.
Limitation on the exercise of rights
o The exercise of certain rights, such as the right to freedom of expression, right to freedom of
association and assembly, the right to freedom of movement and the right to respect for ones
private and family life and correspondence, is generally accompanied with certain limitation that
can me imposed for instance in order to protect the rights and freedoms of others, national
security and public health or morals.
o Balance between Individual interest vs. general interest.
o The limitation of the exercise of HRs are the result of careful balance between the individual
interest and the general interest, and must in order to be lawful;
-be defined by law;
-be imposed for one or more specific legitimate purposes;
-be necessary for one or more of these purpose in a democratic society (proportionality).
In order to be necessary the limitation, both in general and as applied in
the individual case, must respond to a clearly established social need. It os not sufficient that the
limitation is desirable r simply does not harm the functioning of the democratic constitutional
order.
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Derogation of international order
o Under the International Covenant on Civil and political rights and the American and
European conventions on human rights, states parties have the riht in certain
particularity difficult situation to derogate form of their legal obligations.
o The right to derogate is subjected to strict formal and substantive legal
requirements.
o Some fundamental rights may never in any circumstances be derogated from.
o The right to derogate must be construed so as not to sap the individual rights of their
substances.
o Derogations are not permitted under the African charter on human and peoples
rights.
International state responsibility for human rights violations
o Under International law ,states will incur responsibility for not complying with their legal
obligations to respect and ensure, that is to guarantee, the effective enjoyment of the human
rights recognized either in treaty binding on the state concerned or in any other source of law.
o As cited in Velazquez case, an impairment of those rights which can be attributed under the rules
of international law to the action or omission of any public authority constitutes an act imputable
to the state, which assumes responsibility in the terms provided by the legal sources concerned.
o Agents for whom a state is responsible include such groups and individuals as ministerial civil
servants, judges, police officers, prison officials, customs officials, teachers, government-controlled
business and other similar groups. This means that stare are under the obligation to prevent,
investigate, punish and whenever possible, restore rights that have been violated and or
provide compensation.
o International human rights law also has third party effect in that state may be responsible for
not having taken reasonableaction to prevent private individuals or groups from carrying
out acts that violate human rights, or provide protection against violations under domestic
law.
Business corporation and Human Rights
o States may have an international legal obligation to ensure adequate protection in their domestic
law against human rights violation committed by business corporations
o Business corporation may themselves have legal obligation in the field of human rights derived
from domestic law
o At the international level business corporations are considered to have, as a minimum, an ethical
responsibility to respect fundamental human rights
International Human Rights law at the Domestic Level; Incorporating international law into
domestic legal systems.
o Monist theory. International law and domestic law can in general terms be described as forming
one legal system.
-This means that once a state has ratified a treaty for the protection of human person, the terms
of that treaty automatically become binding rules of domestic law .
o Dualist theory. Municipal law and international law are different legal system.
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-Municipal law is supreme and for municipal judges to be competent to apply international treaty
rules, for instance , thse hae to be specifically adopted or transported into domestic law.
-it follows that a human rights treaty ratified by the state concerned cannot in p principle invoke
by local judges unless the treaty is incorporated into municipal law, a process which normally
requires an act of parliament.
o Principal means thru which international human rights norm can be contained in municipal law;
Or otherwise applied in domestic courts;
-Constitutions;
-Other national legislations;
-Incorporation
-Automatic applicability
-Automatic applicability
-Interpretation of common law;
-When there is legal vacuum
CHAPTER 3 BASIC OUTLINE OF HUMAN RIGHTS
1. Concept and development of international human rights law;
o Human rights are commonly understood as those rights to which a person is inherently
entitle merely for human being. Human rights may not be renounced or forfeited.
o Human rights is inalienable in nature, an individual cannot waive any human rights;
but she/he may waive the exercise of a particular right in a certain situation.
-eg. When applying for funds to support his/her return under stranded migrant
programme, a rejected asylum-seeker may sign a waiver indicating his desire not to
appeal the refugee status determination decision.
2. Historical Antecedent
o Origins of HR may found in Greek philosophy & various world religion.
o Mana Carta Liberatum and the English Bill of rights (1679) made significant steps toward
establishing a singular body of norms.
o During the age of enlightenment (18 century) the concept of HRs emerged as a specific category.
Idea of Hugo Grotius, Samuel von Pufendorf, John Locke, and Jean Jacques Rousseau help to
develop the philosophical underpinnings of the modern idea of human rights.
o The American Declaration of Independence was based on the assumption that all human rights
beings are equal, and there are certain inalienable rights, such as the right to life, liberty and
pursuit of happiness.
o The term HRs was first time appeared in the French Declaration Del Homme et du Citoyen.
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3. The Charter of United Nations and subsequent international Human rights instruments
o The adaptation of the Charter of the United Nations after the atrocities in the
second WW, was the decisive step toward international protection of human rights.
o The idea of promulgating an International Bill of Rights was developed immediately
after the adaptation of the UN Charter and led to the adoptation of the Universal
Declaration of Human rights (UDHR).
o Two optional protocol (referred as International Bill of Human Rights)
1. The International Covenant on Economic, Social and Cultural Rights(ICESCR) and
the international covenant on Cvil and Political rights (ICCPR)
2. Abolition of death penalty
4. Reservations to Human rights Treaties
o Reservation is a statement made by a state through which it purports to exclude r alter the
legal effect of certain provision of a treaty as they apply to that state.
o Article 19 of Vienna Convention on the law of treaties, when signing, ratifying, accepting,
approving or acceding to a treaty, state may formulate a reservation unless the reservation is
prohibited by the treaty or the treaty is incompatible with the object and purpose of the treaty.
- Under the Convention on the Elimination of All forms of Discrimination against
Women(CEDAW) expressly includes a provision stating a reservation incompatible with the
object and purpose of the convention shall not be permitted.
- Reservation of a general character are prohibited by HRs instruments of the European
Convention for the protection of Human rights and Fundamental Freedoms.
5. Restrictions or limitation on HRs
o In order to be lawful, acts limiting the exercise of human rights must comply with certain
Minimum requirements. They must be;
1. Defined by law;
2. imposed for one or more specific legitimate purpose.. i.e objectives which are
consistent with the letter and spirit of the international human rights framework and
should be justified by the protection of a strictly limited set of well-defined public
interest, which usually includes one or more of the following grounds : national
security ,public safety, public order, the protection of the health or morals, and the
protection of the rights and freedoms of others.
3. Suitable and necessary. i.e there must be a rational connection between the
measure taken and the objective pursued. The measure must be capable to achieve
the set objective, and there must be a pressing social need to take measure to be
assessed on a case-by-case basis;
4. The least intrusive measure to effectively achieve the legitimate purpose;
5. Proportional i.e the public interest or the rights of others to be protected by the
intrusive measure must outweigh the harm to the individual affected by the measure;
6. Interpreted strictly, in the light and context of the particular right. Without
jeopardizing the essence of the right concerned.
o The burden falls upon a state to prove that a limitation imposed is based the enjoyment of
the rights is legitimate.
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6. Derogations from international legal obligation stipulating that such denunciation shall tae effect for the contracting state concerned one year
from the date upon which it is received by the secretary-general of the united nations.
o The rationale for derogation provision is to strike a balance between the sovereign right of o Human rights instruments such as ICCPR, the ICESCR & CEDAW, do not permit denunciation by
the government to maintain peace and order during public emergencies, and the protection state party.
of the rights of the individual form abuse by the state. Thus, the state is allowed to suspend o Human rights treaties such as CRC, convention against torture and other cruel Inhuman or
the exercise of some rights when necessary to deal with an emergency (e.g., derogation of Degrading Treatment of Punishment (CAT) , and the convention on the elimination of racial
the right to peaceful assembly), provided it complies with safeguard against any abuse of discrimination (CERD) , allow for denunciation.
those derogation provisions.
o When derogation measures are allowed, they are subject to strict formal and substantive
requirements, such as:
1. There must be a war or general state of public emergency which threatens the 10. Types of state duties imposed by international human rights norms
life of the nation.
2. The state of emergency must be officially proclaimed; o The states duties imposed by human rights norms are commonly referred to s tripartite
3. Measure must comply with the principle of proportionality, they may not go typology or three fold classification of obligation;
beyond what is strictly required by situations; -to respect;
4. Measure may not be inconsistent with the other obligations under -protect; and
international law; and -fulfill.
5. Measures must not be discriminatory. o A State will be held responsible for not complying with any of these obligations established in a
treaty binding on the state or in any other source of law.
A. obligation to respect;
- Requires the states including all its organs and agents to refrain from ant measure that may
interfere with or impair an individuals enjoyment of his/her rights or the ability to satisfy
7. Non-Derogable rights those rights by their own efforts.
- It entails negative obligations, such as the prohibition or return or extradite an individual
o The non-derogable rights, that is rights which a state may not in any circumstance derogate. when there are substantial grounds believing that he/she would be in danger of being
o Non-derogabe rights generally includes, at a minimum, the right to life, freedom from slavery, subject to torture.
torture and imprisonment for debt, the principle of legality in the field criminal law, freedom of
thought, conscience , and religion and the right to judicial personality. B. Obligation to protect
o The list of non-derogable rights found in human rights treaties are not exhaustive. That means
that one cannot; a contrario, that, because a right is not expressly listed as non-derogable, state -this level of obligations requires the states, including all its organs and agents to take all
parties an proceed to extraordinary limitations on its enjoyment. necessary measure to ensure that individuals under its jurisdiction are protected from
o The rights contained in Article 4(2) of the ICCPR are not only non-derogable rights; there are infringements of their rights by third parties.
elements of other rights not listed in article 4 (2) that cannot be subject to lawful derogation.
o The prohibition of torture and other forms of ill-treatment are non-derogable rights. - the obligation to protect is the central function of the states, which have to prevent irreparable
o Non-derogable rights under Article 15 of the ECHR, article 4 of the ICCPR and article 27 of the harm form being inflicted upon members of society..
ACHR.
1. The right to life -This requires that states; prevent violations of rights by any individual or non-state actor; avoid
2. The right not to be held in slavery and eliminate incentives to violate rights by third parties; and provide access to legal remedies
3. The recognition as aperson before th law when violations have occurred , in order to prevent further violations.
4. The right not to be subject to torture or cruel, inhuman or degrading treatment or
punishment C. Obligation to Fulfill
5. The right ot freedom of thought, conscience and religion
6. The right not to be taken hostage, abducted or subject to incommunicado detention. - This level of obligation requires the states, including all its organs and agents , to take all
positive measures to ensures that individuals under its jurisdiction enjoy the rights recognized in
human rights instruments.
8. Denunciation
-the duty to fulfill arises with respect to civil and political rights.
o Denunciation is the withdrawal from a treaty by a state party.
o Article 44 any Contracting Dtate may denounce this convention of at any time by a notification
addressed to the Secretary- General of United Nations. It also clarifies the consequences by

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-This level of obligation implies that when a individual cannot secure his/her economic, social and
cultural rights (such as the rights to adequate food, a state party to the major human rights
treaties such as the ICESCR or the CRC , must provide material assistance.

- a state will be held responsible for human rights violation in the international arena if it has
failed to provide the alleged victim with an adequate and effective remedy through its own courts
or administrative authorities. This international protection of human rights is subsidiary to the
available national or domestic mechanism.

11. State responsibility for human rights violations

o A state is considered to have perpetrated an internationally wrongful act when its conduct consist
of an action or omission that is attributable to the state uner international law, and that
constitutes a breach of states international obligations.
o A state is responsible, in international arena , for every internationally wrongful act it perpetrates.
o It is now accepted that state are responsible for some acts perpetrated by private persons or
entities when they, for example , act at the instigation or with the consent or acquiescence of the
state or the state fails to take appropriate measures or to exercise due diligence to prevent ,
investigate, punish or redress the harm caused by such acts, such as when domestic violence is
condoned.
o State can be held accountable for human rights violations that its agents commit on the territory
of the another state, either with or without the acquiescence of the government of that state.
o State are also responsible for the action committed by their diplomatic representatives abroad.
o The rules concerning the basic rights of the human person are erga omnes obligations , and
there is a UN charter obligation to promote universal respect for , and observance of, human
rights and fundamental freedoms.

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