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Human Rights Law Introduction
International laws are sourced from materials and international community processes that
influence the legal and political theories of a jurisdiction. These sources are supposed to reflect
the rules and behavior of the party states and declare procedures for admission of members.
Some of the sources are well documented in various international law journals. Specifically, this
article would deal with International customary law, international treaties and the Universal
declaration of the human rights. International customary law is a major source upon which
international laws are derived. Article 38 of the International Court of Justice Statute defines
international customary law as “…evidence of a general practice accepted as law” (International
Court of Justice, 2002). Another important source of international law is the international
treaties. These are agreements between the states in writing that bound states to accept and
observe some laws. Yet other sources include declarations like the Universal Declaration of
Human Rights (UDHR). The aim of this paper is to investigate the how these sources to the
development of the human rights law.
Customary international law
These are the components of the international laws that are derived from the customs.
The way of life of different states are considered by the Member states, United Nations, jurists
and the international court of justice as a source of international law (Miller, Vandome, &
McBrewster, 2010). It consists of those rules that come out from the States’ consistent conduct in
the belief of the spirit of the law. Initially before the law was codified in The Hague Conventions
and the Geneva Conventions, the major issue on the customary law was the laws pertaining to
wars. This is where a raft of measures were sought to deal with cases that pity different states
against each other (Goldsmith & Posner, 2005).
The International Court of Justice vehemently recognizes the existence of the customary
international laws and has been subsequently incorporated in the United Nations Charter. These
laws are consented to upon repeated lobbying by Member States, who normally posses act of
sense of obligation besides being favored by numbers (Shaw, 2003). This makes them to be
commonly acknowledged by members as the accepted doctrines of law. In addition, they do
provide credence and back ups to the precedents (Goldsmith & Posner, 2005). The recognition
by the United Nations and the International Court of Justice gives the customary international
laws sufficient credibility. This provides a good platform for the development of the human
rights within the realms of this law. Human rights advocates would therefore feel a sense of
international platform in raising the issues concerned with such violations.
The contribution of the customary law to the development of the human rights is through
the fact that they it binds the international community. This is in regards to the general
acknowledgement given to it by the peoples of the world because of its idea of an authoritative
model. For the sake of human rights, the law always regulates cases involving crimes against
humanity, piracy, war crimes, use of force, slavery and genocide (United Nations, 2006). The
law is also largely based on the Universal Declaration of Human Rights (UDHR) and
incorporates the resolutions and decisions that the General Assembly has passed but is yet to be
approved by the Security Council’s permanent members (Dodge, 2007). Proponents for the
human rights development can also find solace in the fact that institutions such as the
International Court of Justice draw its guidelines from the Customary International law
(International Court of Justice, 2002). It is also prudent to note that despite some dissidence on
this law, it acts to provide checks and balances in addition to an oversight authority to the
governments who would otherwise consider themselves above the law. This is owed to the fact
that they transcend borders.
It is a common knowledge that the citizens of some specific countries across the globe
have lost faith in their national governments to exert authority on perpetrators of crimes against
the human rights violations under their jurisdictions (Miller, Vandome, & McBrewster, 2010).
This is partly because such forms of crime are perpetrated by the incumbent regimes who are
themselves the controller of judicial machinery of the state. A customary international law would
therefore come in handy in such a circumstance (Goldsmith & Posner, 2005).
On the flip side, some customary laws lack the much needed legitimacy. For instance,
some customary laws tend to give too much power to the international judges without due
observance of the national laws (Goldsmith & Posner, 2005). Consequently, the national laws are
discredited and disregarded. This is painful to some local jurists in the affected countries who are
of the view that the international customary laws were not crafted through a democratic process
A treaty is an expression of an agreement of international law by international
organizations and sovereign states. In some quarters, it is referred to as exchange of letters,
protocol, convention, agreement or a covenant. There are two types of treaties namely the
bilateral and multilateral treaties (Grenville, 2001). Bilateral treaties have are shared between
two states while multilateral treaties multilateral treaties are those that are concluded among
several countries. Multilateral treaties are further categorized as open and closed. Open treaties
are for every state while closed treaties require a condition of exclusion for the states which are not members of the original State Parties (Gehr, 2010). This could however be overturned
through a written agreement for the same. To this effect, every state in the world has an opening
to join the Vienna Convention on Diplomatic Relations. On the other hand, the Convention on
the Regulation of the Navigation on the Danube River is only open to signatory states but closed
to the non signatory ones (Gehr, 2010).
Treaties play a key role in international relations and also in the development of human
rights. International treaties are based on the idea of free consent and are binding to parties. The
placement of consent to a treaty by a state is an acceptance that it has bound itself to respect the
treaty wholesomely and its entire territory. The effectiveness of any international treaty must also
be based on good faith. A case in point is the International Whaling Commission (IWC) treaty of
July 2001 where the forty member countries declared that “…good faith requires fairness,
reasonableness, integrity and honesty in international behavior” (Grenville, 2001). In this
connection, abusing or violating of the human rights amounts to contravention of the principle.
The element of good faith in a country is however difficult to prove. Another principle of
the international treaty is the element Pacta Sunt Servanda which states that a treaty in force is
binding to all parties and therefore must be performed in faith good faith (Goldsmith & Posner,
2005). This further forbids member states from invoking internal law provisions to justify their
failure of not performing a treaty. This principle provides a solid legal link to member countries
in addressing matters of the human development as it offers checks and balances to national rules
International treaties also have a principle of the Rubus sic Stantibus Clause which allows
member states to terminate their continued involvement with a treaty under extraordinary
circumstances. This can be occasioned by serious breach of the given treaties by one of the party
states. The principle of Favor Contractus advocates for expression of the principle of
international treaty law for the maintenance and the conclusion of treaties over expiry for reasons
(United Nations, 2006).
Based on the idea of its free consent, an international treaty must be appended by a
signature, accepted and approved by all parties. It must also be ratified and ascended to by
member countries. For the development of human rights, treaties serve play a very important role
but also has some boundaries that can limit them to adequately advocate for the expansion of the
human rights (Shaw, 2003). For instance, a treaty does not create an agreement without free
consent. This implies it must seek for the most favorable policies of the member countries as
concerned to the fight for the human rights. A problem can however arise if a given country,
probably one that has many cases of human rights abuse opts not to give its consent to the treaty.
As a result, the country is likely to continue participating in human rights abuses (Gehr, 2010).
Universal Declaration of Human Rights (UDHR)
This is a declaration that was adopted by the United Nations General Assembly in Paris
on 10 December 1948 towards a course that all human beings are innately unconstrained. In
about thirty articles, this declaration has tried to address matters concerned with national
constitutions and law, regional human rights instruments and international treaties (Baderin &
Ssenyonjo, 2010). This declaration appreciates the fact that human rights are not separable from
the human race because they are the buildings blocks of justice, freedom and world peace.
This declaration also seeks to create a world where human beings would freely exercise
freedom of speech without any fear and disregard any form of brutality against any human kind.
It also asserts the importance of revolt against oppression and tyranny and the application of the
rule of law to protect human rights besides the promotion of friendly relation between nations of the world (Sweet, 2003). According to the Universal Declaration of the Human Rights, the social
progress of both men and women could only be attained if the fundamental dignity of the human
race is vehemently upheld. In order to achieve the goals of this declaration, the member states are
required to closely cooperate with the United Nations and declare their full commitment to the
observance of the fundamental freedoms and the human rights. Member states are therefore
called upon to understand the rights and the freedoms and the importance (United Nations,
From these declarations, it is clear that the universal declaration of the human rights has
more dedication and commitment to advance and fight for the upliftment of the human rights
worldwide. It has specific and strategic clauses that are intended to advance the fundamental
rights of human beings in regard to the abuse, violations and the forms of brutality that the
human race has undergone over the years (United Nations, 2006).
International laws are aimed at promoting human rights. But this would depend on the
commitment of the nations. The laws must therefore be written to commensurate with the local