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International Human Rights Law & Instruments

"No institution of government can now afford to ignore the rest of the world."

US Supreme Court Justice Sandra Day O’Connor instructed the American Law Institute (Associated Press)

Contents

It should be noted that this resource is provided as a guide and is not definitive.

UN Charter

The UN Charter is the constituting instrument of the United Nations (UN).  The UN Charter establishes the organs and bodies of the UN, lays out procedure and delineates the rights and obligations of the member states.  The UN was officially established on 24 October 1945 by the ratification of 51 member states of the UN Charter. According to the UN, as of 2003, there are 191 member states within the organization.

The UN Charter sets forth the four stated purposes of the UN:

  • "To practice tolerance and live together in peace with one another as good neighbours, and
  • To unite our strength to maintain international peace and security, and
  • To ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
  • To employ international machinery for the promotion of economic and social advancement of all peoples."

The United Nations Charter alongside the Universal Declaration of Human Rights, adopted by the General Assembly in 1948 forms the basis of international human rights law. Since then, the UN has gradually expanded human rights law to encompass specific standards for women, children, disabled persons, minorities, migrant workers and other vulnerable groups.

The six principal organs of the UN are the: General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice (ICJ) and Secretariat. The UN family, however, is much larger, encompassing 15 agencies and several programmes and bodies.  For more information on the UN please click here.

The International Court of Justice

The International Court of Justice (ICJ), located in The Hague, satisfies the judicial function of the UN. The ICJ resolves existing disputes between States. Additionally, when international agencies pose questions of law to the Court, the ICJ is entrusted to issue advisory opinions to the Security Council and General Assembly.

The ICJ is composed of 15 judges from different member nations who serve terms of a predetermined duration. With regards to issues of capital punishment and foreign nationals, the most pertinent current case pending before the ICJ is Avena and other Mexican Nationals (Mexico v. United States of America). For an overview of the ICJ, please click here.

Statute of the ICJ: Sources of International Law

Article 38 (1) of the Statute of the International Court of Justice provides a list of the sources of international law:

  1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states. (e.g. treaties)
  2. International custom, as evidence of general practice accepted as law.
  3. General principles of law recognized by civilized nations.
  4. Judicial decision and the teaching of the most highly qualified publicists of the various nations, as subsidiary means of determination of law.
This provision is usually accepted as constituting a list of the sources of international law.  Correspondingly, when arguing international law, the sources are your guide.

Treaties

Treaties may also be referred to as conventions or covenants. Treaties often codify rules of customary law and are of growing importance. They are the major instrument of co-operation in international relations and are often an instrument of change. Treaties, once signed and ratified, are binding on the party. Upon signing an international instrument, the party agrees to bind itself in good faith to ensure that nothing is done which would defeat the object and purpose of the treaty, pending a decision on ratification, if ratification is required.  A signature does not however, create an obligation to ratify but, once ratified, the treaty becomes binding on the nation.  The nation is considered to have consented to be bound.

For example the UN Charter is a treaty.

Other examples include:

Please click here for ratification status of the principle human rights treaties.

Reservations

A reservation can be made to a treaty.  A reservation is a statement made by a nation, when signing or ratifying a treaty, where is purports to exclude or modify the legal effect of a certain provision of the treaty. For example, when ratifying the ICCPR, the United States made a reservation to Article 6(5).  Art.6(5) of the ICCPR explicitly provides:

Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out against pregnant women.

Upon ratification, the United States Senate intended to reserve for the United States the right "subject to its Constitutional constraints, to impose capital punishment on any person...including such punishment for crimes committed by persons below eighteen years of age." The United States put forward this reservation in order to permit the various states to continue to execute juvenile offenders.  The validity of this reservation is controversial.  Please contact the IJP for more information and see William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights:  Is the United States Still a Party?  21 Brook.J.Int'l.L. 277 (1995)

Treaties: Interpretation and Application

The Vienna Convention on the Law of Treaties is widely accepted as codifying the customary rules relating to treaty interpretation and application and as the governing international treaty on such matters.  This treaty governs, for example, the validity of reservations and the obligation of a state upon signing a treaty to bind itself in good faith to ensure that nothing is done that would defeat the treaty's "object and purpose," pending ratification.

Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, entered into force January 27, 1980.

It should be noted that the US has signed but not ratified this treaty.  In accordance with the principles of international law and as stated above, the US is obliged however, to bind itself in good faith. The U.S. Department of State has taken the position that it is the authoritative guide to existing treaty law and procedure.  See also, Restatement (Third) of Foreign Relations Law of the United States, Sec. 313(1)(c)(1987).

Customary International Law

Custom is the second source of international law listed in Article 38 of the Statute of the International Court of Justice. As confirmed by the ICJ in Nicaragua v. USA (merits), ICJ Rep, 1986, 14 at 97., custom is constituted of two elements: (i) The general practice of nations (objective) (ii)  ‘Accepted as law’ (opinio juris) (subjective).

An international law norm must satisfy both prongs in order to be deemed legally binding customary international law: the norm must be adhered to in practice by most countries and, those countries that follow the norm must do so because they feel obligated by a sense of legal duty ("opinio juris"). 

Customary international law is binding on a nation.

Sources of custom are numerous and include diplomatic correspondence; opinions of official legal advisors; press releases from the nation; international and national judicial decisions; treaties; and resolutions. 

For example the prohibition against the execution of juveniles has arguably became a principle of customary international law, and therefore, binding upon all nations.  Please click here for more information on juvenile offenders.

Persistent Objector

As stated above, customary international law is binding upon a nation.  A nation-state may however, avoid being bound by a rule of customary international law if it has been a "persistent objector" to the norm or rule.  Objection to the norm must be "consistent" and, irrespective of disagreement

Resolutions

Resolutions are non-binding, but are reflective of the acceptance of an international norm.  Examples of resolutions include the Universal Declaration of Human Rights and Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty.

Jus Cogens

Under Article 53 of the Vienna Convention on the Law of Treaties, a jus cogens norm is:

"a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."

The Restatement (Third) of the Foreign Relations Law agrees with this standard, asserting that the norm is established where there is acceptance and recognition by a "large majority" of states, even if over dissent by "a very small number of states" (Restatement (Third) of Foreign Relations Law, §102, and reporter’s note 6 (1986), citing Report of the Proceedings of the Committee of the Whole, May 21, 1968, UN Doc. A/Conf. 39/11 at 471-72).

In other words, the norm describes such a bare minimum of acceptable behavior that no nation state may derogate from it. A nation therefore, cannot contract out of this peremptory norm or assert persistent objector.  It is argued by some that the overwhelming application of the norm against executing juvenile offenders has rendered it a jus cogens norm.

On 22 October 2002, the Inter American Commission on Human Rights (IACHR) reviewed the case of Michael Domingues, a juvenile offender sentenced to death in Nevada for a double homicide at the age of 16 years. In considering the merits of the case, the IACHR concluded that the United States "has acted contrary to an international law norm of jus cogens by sentencing Michael Domingues to the death penalty for a crime that he committed when he was 16 years of age". The IACHR considered the prohibition against the execution of juveniles (under the age of 18 at the time of the offense) to be now of a sufficiently indelible nature to constitute a norm of jus cogens. (Report No. 62/02, Case No. 12.285 Michael Domingues & United States)

As the IACHR explained norms of jus cogens "derive their status from fundamental values held by the international community, as violations of such peremptory norms are considered to shock the conscience of humankind and therefore bind the international community as a whole, irrespective of protest, recognition or acquiescence."

Regional Bodies

Organization of American States

The United States is one of the 35 members of the Organisation of American States (OAS), a regional agency created within the meaning of Article 52 of the United Nations Charter. The OAS is an international organization created to achieve an order of peace and justice, promote solidarity and defend their sovereignty, their territorial integrity and their independence (Article 1 of the OAS Charter). The Charter of the OAS, which entered into force in 1951, reaffirms that international law is the standard of conduct of States in their reciprocal relations.

The Inter-American human rights system encompasses the western hemisphere and is one of the two regional systems to have adopted a convention abolishing the death penalty (Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, see sub-section 2.1). The other regional system (in Europe) has adopted a similar convention.

The 35 American States have adopted numerous international instruments that have become the foundation for the promotion and protection of human rights. The Inter-American human rights system recognizes and defines those rights and establishes binding rules of conduct to promote and protect them, while creating organs to monitor their observance (see next sub-section). A number of Latin American nations have abolished the death penalty and the long-term worldwide trend is towards total abolition. Conversely, the membership of the OAS also includes avid supporters of the death penalty including, Jamaica, and the United States of America.

Inter-American Human Rights Commission on Human Rights

One of the OAS bodies charged with furthering and ensuring observation of the Inter-American human rights system is the Inter-American Commission on Human Rights (IACHR). The United States upon ratifying the Charter of the OAS in 1951, accepted the authority of the Commission.

It is important for US litigators to use both the Inter-American Commission on Human Rights of the OAS (which has jurisdiction to hear complaints against the USA) and the International Court of Justice (where the US has become the object of two complaints).

Many domestic lawyers handling death penalty cases are unacquainted with the availability of this and other international mechanisms or are unfamiliar with the rules and procedures of the tribunals. Contact the International Justice Project for more information, or the OAS directly.

In qualifying cases of extreme gravity and urgency, the Commission issues precautionary measures when it becomes necessary to avoid irreparable damage to persons in the matter before them. Upon the issue of these precautionary measures, the Commission requests that the United States preserve the life of the person in question, pending their investigation of the allegations forwarded in the relevant petition.

For further information on the Inter-American Commission on Human Rights and inter-American system please click here.

Europe

European Union

The European Union (EU) is a unique regional international institution. Although the EU is not a unified state, it has created certain institutional bodies that will speak on behalf of the member nations on areas of economic and/or human rights interests. These interests were agreed upon by all members upon signing the EU formation treaties. The principal objectives of the EU are: to establish European citizenship, to ensure freedom, security and justice, to promote economic and social progress, and to assert Europe's role in the world. One of the qualifications for membership as an EU nation is a domestic abolition of the death penalty. The European Union has also taken a strong stance against the use of the death penalty in non-member nations.  For more information on the EU please click here.

Council of Europe

The Council of Europe, headquartered in Strasbourg, France, is Europe’s oldest political organization. Established in 1949 by the Treaty of London, it groups together 45 countries, has applications from 2 more countries, and has granted observer status to 5 international entities (the Holy See, the United States, Canada, Japan, and Mexico). The Council of Europe was created in order to defend human rights, parliamentary democracy, and the rule of law. It seeks to develop continent-wide agreements (it has developed 192 legally binding European treaties or conventions) to standardize member countries’ social and legal practices, and also seeks to promote awareness of a European identity based on shared values. Please click here for more information.

Europe and the Death Penalty

Within Europe, Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, as amended by Protocol No. 11 prohibits the imposition of the death penalty in peace time. Following on from Protocol No. 6, Protocol No.13 abolishes the death penalty in all circumstances including crimes committed at times of war and imminent danger. Further, abolition of the death penalty is a prerequisite for joining the European Union. 

International Instruments

The death penalty is not illegal under international law, but it is the goal of the international community to abolish the death penalty under all circumstances. Until that time, there are restrictions on the categories of persons who can be executed.  The application of international law extends beyond capital punishment and can be articulated in both civil and criminal legal arguments.  Examples of international instruments follow.

Fundamental International Human Rights Instruments

  • UN Charter June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945

Fundamental Regional Human Rights Instruments

  • American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).
  • American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).

Examples of International Human Rights Instruments and Resources Organized by Topic.

Foreign Nationals

Under Article 36 of the Vienna Convention on Consular Relations, 1963 (VCCR), local authorities must notify all detained foreigners "without delay" of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals' legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. As of 1 January 2000, at least 167 countries were parties to the VCCR.

The United States has signed "The Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes". By signing the optional protocol the United States is bound to World Court jurisdiction in claims based on the VCCR.

On 27th June 2001, the International Court of Justice (ICJ) issued a binding judgment in the LaGrand case (Germany v USA) in which the Court ruled on the interpretation and application of rights conferred under Article 36 of the Vienna Convention on Consular Relations (VCCR)

The United States has signed bilateral mandatory notification treaties with over fifty countries. These treaties regulate the rights of governments to provide consular services to their citizens. Some of these agreements require that consular officials be notified of the arrest and/or detention of one of their nationals regardless of whether the national has made a request for assistance.

Please click here for resources pertaining to foreign national offenders.

Juveniles

Article 4(5): Capital punishment shall not be imposed upon persons who at the time the crime was committed was under 18 years of age

Article 68: In any case the death penalty may not be pronounced against a protected person who was under 18 years of age at the time of the offense.

The implication of this treaty is that if the parties do not believe that the execution of juveniles at times of war is immoral it is certainly immoral at times of peace.

  • International Covenant on Civil and Political Rights (ICCPR -149 state parties), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. Signed by the United States: October 5, 1977, ratified: June 8, 1992.

Article 6(5): Sentences of death shall not be imposed for crimes committed by persons below 18 years of age The United States of America has reserved the right to continue to execute juveniles. Eleven nations have filed complaints with the Human Rights Commission (the Commission in charge of monitoring compliance with the terms of the ICCPR). Theses objecting nations are among the closest allies of the US: France, Sweden, Belgium, Denmark, Finland, Germany, Italy, Netherlands, Norway, Portugal and Spain. U.S. Reservations on the ICCPR

Article 37a: No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age. 191 nations, except the United States and Somalia, have ratified this treaty. Somalia, until recently had no recognizable government. However on May 9, 2002 Somalia signed the CRC and announced its intentions to ratify.

Please click here for further information and resources pertaining to international law and juvenile offenders.  

Mental Retardation

Treatment of Prisoners

Torture

Race

Law Enforcement Officers

Lawyers/Judiciary

  • Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990).

Medical Ethics