Key Principles of International Law

Human Rights in International Law

Human rights are inherent to all persons and dictate the minimum standard that must be applied to all people. They are enshrined in both national and international law and all persons are entitled to enjoy such rights without discrimination. When fully realised, human rights reflect the minimum standards to enable persons to live with dignity, freedom, equality, justice and peace.

The cornerstones of human rights are that they are inalienable and therefore cannot be taken away; are interconnected and therefore dependant on one another; and indivisible, meaning that they cannot be treated in isolation. Not all rights are absolute, and some rights may be subject to certain limitations and restrictions in order to balance competing rights and interests.

Human rights under international law are generally considered to be rooted in the Universal Declaration of Human Rights (UDHR), which was agreed to by the United Nations in 1948 following the end of World War II. The UDHR is not a binding treaty in itself, but countries can be bound by those UDHR principles that have acquired the status of customary international law. The UDHR has further been the catalyst for the creation of other binding legal instruments, most notably the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Together, these three instruments constitute what is known as the International Bill of Rights. Since their adoption, additional thematic treaties have been developed to address certain topics:

• The International Convention on the Elimination of All Forms of Racial Discrimination;
• The Convention on the Elimination of All Forms of Discrimination against Women;
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
• The Convention on the Rights of the Child;
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;
• The Convention on the Rights of Persons with Disabilities; and
• The International Convention for the Protection of All Persons from Enforced Disappearance.

In Africa, the African Charter on Human and Peoples’ Rights (African Charter) is the primary treaty governing human rights on the continent. States are the primary duty-bearers for the realisation of human rights, which encompasses both negative and positive duties. With negative duties, states must avoid violating the rights of individuals and communities within their territories and protect them against violations by others. On the other hand, the obligation to fulfil human rights requires states to take positive steps to enable the full enjoyment of these rights. By ratifying treaties, states commit to putting in place domestic measures, such as legislation, to give effect to their treaty obligations.

Applying international law in a domestic context

International and regional human rights law not only sets a standard for domestic law to follow but is in many cases binding on states. However, the exact way in which international law obligations are implemented domestically varies around the world.

The ICCPR creates a binding obligation on states.  Regional human rights standards are also particularly influential, especially since there is near-universal ratification of the African Charter by African states.(1)

The way in which international law applies domestically is largely determined by whether a state applies monist or dualist principles:

• Monist states are those where international law is automatically part of the domestic legal framework.  However, their exact status — whether above or on par with a state’s constitution or domestic law — varies.
• Dualist states are those where international treaty obligations only become domestic law once they have been enacted by the legislature.  Until this has happened, courts are not expected to comply with these obligations in a domestic case, although there are states wherein some parts of international law may be automatically applied or used as a tool to interpret domestic law.

States with common law systems are invariably dualist, and while States with civil law systems are more likely to be monist, many are not. Because the application of international law is so varied and complicated, practitioners must evaluate the specific context in a given country to understand how to apply international and regional law most effectively.