Key Principles of International Law

Human rights in international law

Human rights are inherent to everyone and set out minimum standards for treatment of all people.  They are enshrined in both national and international law, and everyone is entitled to enjoy such rights without discrimination.  When fully realised, human rights reflect the minimum standards needed to enable people to live with dignity, freedom, equality, justice and peace.

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

Human rights under international law are 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. Indeed, many of the provisions of the UDHR, including its article 19 guarantee of freedom of expression, are generally considered to reflect customary norms.  The UDHR has further been the catalyst to creating 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, such as:

• 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.

Applying international law in a domestic context

International human rights law is binding on states and sets a standard for domestic law to follow.  As summarised by the UN Human Rights Committee in relation the rights to freedom of opinion and expression guaranteed in the ICCPR:

The obligation to respect freedoms of opinion and expression is binding on every party as a whole. All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State party.  Such responsibility may also be incurred by a State party under some circumstances in respect of acts of semi-State entities.  The obligation also requires States parties to ensure that persons are protected from any acts by private persons or entities that would impair the enjoyment of the freedoms of opinion and expression to the extent that these Covenant rights are amenable to application between private persons or entities.(1)

However, the exact way in which international law obligations are implemented domestically can vary from country to country.

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, the exact status of international law — 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, they are not formally part of the domestic legal system. However, in practice, international law is often still a useful tool for interpreting domestic law, and many courts have developed legislative or doctrinal principles whereby interpretations that are in conformity with international law will be preferred.

States with common law systems are more often dualist, and states with civil law systems are more likely to be monist.  However, the issue of how international law is treated by domestic courts is often more nuanced in practice. For example, constitutional or statutory requirements to consider international law in many jurisdictions can blur the idealised categories of ‘monist’ and ‘dualist’ systems. 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 law and standards most effectively.