Chapter 2 – Introduction to International Human Rights Law




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Chapter 2 – Introduction to International Human Rights Law










Chapter 2

Introduction to International Human Rights Law


1.Executive Summary 3

2.Sources and Content of Human Rights Law 4

2.1Introduction 4

3.Treaties 4

3.1Process of Treaty-Making 4

3.2Key Multilateral Human Rights Treaties 6

3.3Universal Declaration of Human Rights 7

3.4International Covenant on Civil and Political Rights 9

3.5International Covenant on Economic, Social and Cultural Rights 12

3.6International Convention on the Elimination of All Forms of Racial Discrimination 14

3.7Convention on the Elimination of all Forms of Discrimination against Women 15

3.8Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment 17

3.9Convention on the Rights of the Child 18

3.10Convention relating to the Status of Refugees 20

3.11International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 22

3.12Reading the Treaties as a Whole 23

3.13International Criminal Law — The Rome Statute and the International Criminal Court 24

3.14Workers’ Human Rights and the International Labour Organisation 26

4.Customary International Law 28

4.1Elements of Customary International Law 28

4.2The Persistent Objector 31

4.3Jus Cogens 31

4.4Treaties and Custom 32

4.5Customary International Law in Australia 33

4.6Further Resources 33

5.Jurisprudence 34

5.1Judicial Decisions and the Teachings of the Most Highly Qualified Publicists 34

5.2Judicial Decisions 34

5.3Publicists 35

5.4Treaty Bodies 36

5.5Further Resources 37

6.Principles of International Human Rights Law Interpretation 37

6.1Introduction 37

6.2Article 31 — General Rule of Interpretation 38

6.3Article 32 — Supplementary Means of Interpretation 38

6.4Principle of Interpretation in Good Faith 39

6.5Principle of Ordinary Meaning 39

6.6Principle of Interpretation in Context 39

6.7Effectiveness Principle 41

6.8‘Dynamic Interpretations’ Principle 41

6.9Other Interpretation Issues 42

6.10Further Resources 42

7.Further Online Human Rights Law Resources 42




  1. Executive Summary

  • The primary sources of international human rights law are treaties and customary international law.

  • The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights together form what is known as the ‘International Bill of Rights.’ There are also treaties that deal specifically with discrimination based on race and gender, torture, children, refugees, workers and migrant workers. However, human rights are interdependent and must be considered together when determining a state’s human rights responsibilities.

  • The two elements of customary international law are state practice and opinio juris (the existence of a belief held by states that an international norm is legally binding). Various sources, including those at the intergovernmental, governmental, and non-governmental levels are useful in ascertaining the existence of state practice and opinio juris.

  • Subsidiary sources of international law include judicial decisions at both the domestic and international levels, ‘teachings of the most highly qualified publicists’, and the work of treaty committee bodies. A number of treaty committee bodies issue ‘Concluding Observations’ on state reports, ‘Views’ on individual complaints and ‘General Comments’ on the interpretation of the relevant treaty.

  • The principles of international law interpretation are largely codified in the Vienna Convention on the Law of Treaties and include the following:

  • customary international law continues to exist even after the creation of a treaty-based norm;

  • a treaty must be performed in good faith in accordance with any particular understanding reached by the parties upon entering the treaty;

  • words in a treaty must be given their ordinary meaning, except where a special meaning has been agreed;

  • a treaty must be interpreted in context and in light of its object and purpose;

  • a treaty must be interpreted such that it has effective operation; and

  • a treaty must be interpreted in light of the circumstances prevailing at the time of the interpretation, rather than at the time of agreement.




  1. Sources and Content of Human Rights Law

    1. Introduction

It is well accepted that the sources of international law are enumerated in art 38(1) of the Statute of the International Court of Justice (‘ICJ Statute’).1 They include:

  • treaties;

  • customary international law;

  • the general principles of law recognised by civilized nations; and

  • judicial decisions and the teachings of the most qualified publicists.




  1. Treaties

Treaties, or international conventions, are the most commonly referred to source of international law and are the first enumerated source in art 38 of the ICJ Statute. A treaty is an instrument which imposes binding obligations on the states that become a party to it.2 Treaties are similar to contracts in that they bind only those that are parties to them. Parties therefore bind themselves to act in a particular way and, via this process, create legal relationships with other parties. It is a basic principle of international law that treaties do not bind non-parties.3


    1. Process of Treaty-Making

Treaties are made via several steps, which usually take several years to complete. The following description of this process is based on the Southern Africa Litigation Centre’s practical guide to International Treaty Obligations in Human Rights Cases:

  • Pre-negotiations: Particularly in cases of multilateral treaties, formal intergovernmental negotiations are often preceded by various ‘soft-law’ (non-binding) instruments such as declarations, resolutions, expert studies and drafts.

  • Negotiation: Treaties involving only a few countries are generally developed through direct negotiations between the countries concerned. In contrast, multilateral negotiations involving many countries often take place under the auspices of an international organisation such as the UN or one of its agencies.

  • Adoption: This is when the treaty text is finalised. Multilateral treaties negotiated through the UN are often "adopted" by the negotiation committee of the UN General Assembly before being opened for signature.

  • Signature: Generally, signature of a treaty is merely a preliminary step in the process of becoming bound by a treaty, and does not confer binding obligations on a signatory state. A treaty may, however, provide that a signature itself expresses a state’s consent to be bound (though this is generally only true of bilateral treaties). Where signature does not express such an intention to be bound, signatories to a treaty have only the limited obligation to refrain from acts that would ‘defeat the object and purpose’4 of the treaty. With a few exceptions (such as the President or Foreign Minister) a person signing a treaty must show that he or she has authority to do so.

  • Ratification: Unless a treaty provides that signature expresses the state’s consent to be bound, signatories must also ratify the treaty in order for its terms to become binding on that state. There is a different ratification process for each country and the process is frequently set out in a country's Constitution (although not in Australia’s case).

  • Accession: When a state accepts an offer or opportunity to become a party to a treaty that has already been negotiated and signed by other countries, then that state is said to have ‘acceded’ to the treaty. Accession has the same legal force as ratification and generally occurs after the treaty has entered into force.

  • Entry into force: Bilateral treaties usually enter into force (ie become legally effective) after both sides have consented to be bound. Multilateral treaties may specify that a particular number of states must ratify or accede to the treaty in order for it to enter into force. After a treaty enters into force those states that have expressed their consent to be bound by the treaty (through signature, ratification or accession, as the case may be) are referred to as ‘parties’ to the treaty or ‘states parties’.

  • Treaty termination and withdrawal: Some treaties contain specific provisions addressing termination and withdrawal. If a treaty does not contain such provisions, the default rules in the VCLT apply. Grounds for termination and withdrawal include: mutual agreement (arts 38 and 59); material breach (art 60); supervening impossibility of performance (art 61); and fundamental change of circumstances (art 62).

  • Reservations: In multilateral treaties, reservations have the effect of excusing a state from the application of a substantive provision of the treaty if that state has declared its intention not to be bound by the provision. As defined by the VCLT, a ‘reservation’ means

a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.

Where a reservation is made to a substantive provision in a bilateral treaty the effect will be that of a ‘counter offer’, requiring the renegotiation of the treaty. Lawyers should be aware of any reservations claimed by their government with respect to any of the human rights guarantees. Some provisions are considered to be so central to the object and purpose of the treaty in question that no reservations are permitted.


    1. Key Multilateral Human Rights Treaties

There are nine key multilateral treaties relevant to human rights law:5

  • International Covenant on Civil and Political Rights;6

  • International Covenant on Economic Social and Cultural Rights;7

  • International Convention on the Elimination of all Forms of Racial Discrimination;8

  • Convention on the Elimination of all Forms of Discrimination against Women;9

  • Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment;10

  • Convention on the Rights of the Child;11

  • Convention relating to the Status of Refugees;12

  • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;13 and

  • Rome Statute of the International Criminal Court.14

These (and other) international treaties are interpreted and applied according to rules codified in the VCLT. Sometimes called ‘the treaty on treaties’, the VCLT is an authoritative source of law containing ‘default’ rules and principles of interpretation. It applies when a treaty is silent on an issue, but it is subordinate to the express provisions of other treaties.

This section outlines the important features of each of these treaties, as well as several other relevant international instruments. Subsequent chapters provide further detail as to how the rights contained in the various international instruments may influence and become part of the law in Australia15 and as to the mechanisms by which these rights are monitored and may be enforced.16

From the outset, it is important to note that while the international human rights instruments are each independent, it is the stated intention of the United Nations that they be considered together when determining a state’s human rights responsibilities.17


    1. Universal Declaration of Human Rights

The Universal Declaration of Human Rights (‘UDHR’)18 is not technically a treaty. It is a resolution of the General Assembly and so, unlike a treaty, is not formally legally binding (except by operation of customary international law19), but it enshrines a broad normative platform of human rights which are widely agreed upon. It has considerable moral and rhetorical force as the first internationally agreed definition of human rights. Its force is enhanced by the fact that it was drafted in the aftermath of World War II, when so many of the rights the UDHR contains were so grossly violated.

The process of converting the UDHR into a legally binding form commenced immediately upon its adoption in 1948. The initial idea was to enshrine the UDHR’s rights in a single covenant as a means of preserving the interdependence of human rights, although this was subsequently abandoned in favour of multiple covenants. The rights enumerated in the UDHR were later given fuller form in the ICCPR,20 the ICESCR21 and other instruments. The UDHR, ICCPR and ICESCR together form what is often known as the ‘International Bill of Rights’.

The first article of the UDHR provides that ‘all human beings are born free and equal in dignity and rights’. Article 2 goes on to set out a non-exhaustive list of prohibited grounds for discrimination. These include, among others, religion, race or colour, and political or other opinion. Significantly, both the ICCPR and ICESCR also include the same list of prohibited grounds of discrimination. Australia has enacted legislation to implement some of these prohibited grounds of discrimination, including those in respect of race,22 disability,23 age24 and sex.25

Article 3 declares a person’s right to life, liberty and security of person. Articles 4 to 21 set out other civil and political rights such as the right to seek and enjoy asylum and the right to freedom of movement and residence.

Articles 22 to 27 detail a number of economic, social and cultural rights. Article 22 introduces this section of the UDHR and provides that a person is entitled to these rights ‘as a member of society’. However, the article also recognises that the achievement of these aims is dependent upon the resources of individual states. This notion of ‘progressive realisation’ of economic, social and cultural rights is discussed further in Chapter 3. Examples of the rights enshrined in this part of the UDHR include the right to education and the right to equal pay for equal work.

Although the rights enumerated in the UDHR have been divided into two treaty instruments, the ICCPR and the ICESCR, the preambles and Parts I of the two Covenants are substantially the same in stating, among other things, that the different categories of human rights (that is, economic, social, cultural, civil and political) are interdependent,26 and that all people have a right to self-determination.

For further information on the UDHR, see the following resources:




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