NOTES ON: Final Report on the Impact of
International Human Rights Law on General
International Law
- At the International Law Association's 2004 Conference in
Berlin, the Executive Council entrusted the Committee on
International Human Rights Law and Practice, with the task of
preparing a report on the relationship between general
international law and international human rights law.
→ THIS is that report
- 2 APPROACHES:
FRAGMENTATION APPROACH: Emphasis on the
special/distinctive nature of international human rights law,
assumes that the rules and principles of GENERAL international
law are not applicable to it.
RECONCILIATION APPROACH: To take as the point of
departure, that international human rights law is part of general
international law, and that the two branches of law should be
reconciled with each other as much as possible.
- The Committee chose the Reconciliation approach, as it is in
conformity with international practice.
- International human rights courts and UN human rights treaty
bodies have often relied on norms of general international law.
THE REVERSE PROCESS however, is a topic less explored & more
interesting
- INT'L HUMAN RIGHTS LAW: inclusive of any international
norm capable of conferring rights and duties directly on
individuals regardless of nationality, including under
international humanitarian law and international criminal
law.
WHAT IS GENERAL INTERNATIONAL LAW? → The opposite of
special international law (which governs particular topics)
- Defining characteristic of 21st century: Emergence of individual
and other non-state actors. But what exactly is their impact on
the SUBSTANCE of international law?
METHOD USED BY THE COMMITTEE:
1. Identified set of legal issues developed by international
human rights bodies which are difficult to reconcile with
traditional international law, because they reflect interests
of individuals rather than states
2. Considered whether these concepts affected general
international law, OR remained lex specialis → This was
done by examining the practice of the ICJ and the ILC,
who have explicitly borrowed concepts and findings from
human rights bodies.
Committee is well aware that the sruvey in the present report is
incomplete. Committee considers the impact of international
human rights law on general international law highly desirable to
soften the predominantly state-centered nature in order to
accommodate international obligations in the field of human
rights.
2 CONCEPTS that strongly influence the tructure of international
obligations:
OBLIGATIONS erga omnes:
– concept introduced as obiter dictum in the Barcelona
Traction case, as a response to widespread criticism of
ICJ's refusal to recognize the jus standi of Ethiopia and
Liberia in the South West Africa cases.
– The ICJ suggested that the obligation not to commit or
tolerate racial discrimination has an erga omnes character
and therefore may be invoked by any state.
– ILC: Article 48 of Articles on Responsibility of States for
Internationally Wrongful Acts: any State other than an
injured State, is entitled to invoke the responsibility
of another state... if (a) the obligation breached is
owned to a GROUP OF STATES including that State,
and is established for the protection of a collective
interest of the group; or (b) the obligation breached
is owed to the international community as a whole.
PEREMPTORY NORMS/Jus Cogens: Treaty reservations:
– In traditional international law, it is all based on consent TRADITIONAL: state is bound only to the extent that it has
and thus there can be no hierarchy of obligations; thus, consented to be bound → problematic, as human rights treaties
there is no special place for commuity values tha ttrump create obligations of a non-reciprocal nature which establish
other norms. rights for individuals. PAGE 11
– Art 52 of the Vienna Convention: A treaty is void if at its
conclusion, it conflicts with a peremptory norm of general
international law.
– ILC: Articles on Responsibility of States for Internationally
Wrongful Acts: States shall cooperate to bring to an end,
any serious breach arising under a peremptory norm of
general international law.
– Applied not only by it'l human rights courts but also other
courts.

Traditional approach of identifying customary int'l law is to rely

on OPINIO JURIS. The practice must be carried out in such a
way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it; and in
doing so, the traditional approach is to afford more weight to
physical acts of states than their verbal acts.

IN Nicaragua case, ICJ observed a new approach: it must satisfy

itself that the existence of the rule in the OPINIO JURIS of States
is confirmed by practice. The ICJ also recognized that contrary
practice does not undermine the formation of a rule of customary
international law, as long as the practice is CONDEMNED and the
state in question does NOT claim to act as a matter of right.

HOWEVER, techniques for the identification of rules of customary

international law differ depending on the subject matter; i.e.:
what is customary for commercial shipping is not the same as for
warfare.

Treaty interpretation: ILA Committee on International Human

Rights Law and Practice suggest that subsequent practice in the
application of the treaty which establishes the agreemet of the
parties regarding its interpretation; or alternatively, that states'
acquiescence in such findings constitutes such practice.