LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


The evolution of international human rights law began about seventy years ago with the Universal Declaration of Human Rights adopted by the U.N General Assembly in December 1948. As a form of international law, international human rights law is primarily composed of treaty law – legally binding agreements between State parties – and customary international law – rules of law derived from the consistent practice of States. Where international treaties and customary laws form the foundation of international human rights law, other factors, such as declarations, guidelines, principals, adopted at the international level contribute to its understanding, implementation and development.

The Universal Declaration of Human Rights (UDHR) represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone who is born free and equal in dignity and rights, regardless of nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status.


Following the atrocities committed during World War II, the acute requirement to maintain peace and justice for humankind precipitated a search for ways of strengthening international cooperation, including cooperation aimed towards both, protection of human person against the arbitrary exercise of State power, as well as improving standards of living. The foundations of a new international legal order based on certain fundamental purposes and principles were thus laid down on June 26, 1945 with the adoption of the Charter of United Nations. In the Preamble to the Charter, faith is reaffirmed ‘in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’. The Preamble also inter alia expressed the determination to ‘promote social progress and better standards of life in larger freedom’. Additionally, one of the four purposes of the United Nations, as per Article 1 (3) of the Charter, is ‘to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.

The adoption of UDHR by the United Nations General Assembly brought about an authoritative interpretation to the references of ‘human rights and fundamental freedoms’ made in the Charter. The UDHR recognises civil, cultural, economic, political and social rights, and, although it is not a legally binding document per se, the principles contained therein are now considered to be legally binding on the States as customary international law or general principles of law, as it was adopted by a resolution of the General Assembly.

The all-too-evident lesson drawn from the Second World War was that if a State pursues a deliberate policy of denying persons within its territory their fundamental rights, not only the internal security of the State is in jeopardy, but also it gives rise to a spill-over effect that endangers the peace and security of other States as well. Effective protection of human rights promotes peace and stability at the national level not only by permitting people to enjoy their basic rights and freedoms, but also by providing a basic democratic, cultural, economic, political and social framework within which conflicts can be peacefully resolved. Protection of human rights is consequently also an essential precondition for peace and justice at the international level, as it has inbuilt safeguards that offer the population ways of easing social tension at the domestic level before it reaches proportions to create a threat on a wider scale.
More recently, the link between the rule of law, effective human rights protection and economic progress has been emphasised by the Secretary-General of the United Nations, stating that economic success is high dependent on the quality of governance a country enjoys.


The most essential tool for judges, prosecutors and lawyers in the human rights field is to consult the treaty obligations binding on the State, apart from the existing domestic law. A treaty is a legally binding, written agreement concluded between States, but also comprises of agreements between, for instance, the United Nations and a State for specific purposes. A State cannot avoid responsibility under international law by invoking the provisions of its internal laws to justify its failure to perform its international legal obligations.

Human rights treaties are law-making treaties of an objective nature consisting of general norms that are uniform for all States parties. These norms are applicable on States irrespective of the state of implementation by other States parties. The facts that human rights treaties have been concluded for the purpose of ensuring effective protection of rights of the individual takes on particular importance in the course of interpretation. Therefore, it is essential for judges to adopt a more teleological and holistic interpretative approach by looking for an interpretation that respects the rights and interests of the individual, and that is also fitting in the context of the treaty as a whole.

To adhere to article 38 (1) of the Statute of the International Court of Justice (ICJ), judges can also apply ‘international custom’ as an evidence in the general practice of law. International customary legal obligations binding upon States are thus created, when there is evidence of both, acts amounting to a ‘settled practice’ of States, and a ‘belief that this practice is rendered obligatory by the existence of a rule of law requiring it’, i.e. opinio juris.

The judge will therefore have to assess the existence of one objective element consisting of the general practice, and one subjective element, namely, that there is a belief among States as to the legally binding nature of the said practice.

Another source of law cited by the Statute of the International Court of Justice helps ensuring that a conclusion is reached through other resources in cases where international treaties and customary law may not be able to provide sufficient grounds for the Court to take a decision. A general principle of law, as a source of international human rights law, is a legal proposition so basic that it is prominent in all major legal systems globally. If any domestic law provides evidence that States adhere to a particular legal principle that provides for a human right, or that is essential to the protection thereof, then this illustrates the existence of a ‘legally binding principle’ under the international human rights law. Domestic law analogies have thus been used as instances in the field of principles governing the judicial process, such as the question of evidence.

Article 38 of the Stature also mentions ‘judicial decisions and teachings of the most highly qualifies publicists’ as subsidiary means for determination of rules of law. However, neither the ICJ nor the international monitoring organs in the human rights field are obliged to follow previously pronounced judicial decisions. Although this is usually done, is it particularly essential for the monitoring organs in the human rights field to retain the flexibility required to adjust earlier decisions to the altering social needs.


Through ratification of international human rights treaties, governments undertake to place domestic measures and legislations compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principle legal protection of human rights guaranteed under the international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.

"Loved reading this piece by Nikita Mehrotra?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Others, Other Articles by - Nikita Mehrotra