content writer: prof. nitin gomber, assistant professor, o

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Human Rights and Duties

International Human Rights Law

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PrincipalInvestigator:

PaperCoordinator:

ContentWriter:

ContentReviewer:

Prof.(Dr.)YSRMurthy,ExecutiveDirector,CentreforHumanRightsStudies,OPJindalGlobalUniversity

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Prof.NitinGomber,AssistantProfessor,OPJindalGlobalUniversity

Prof.NitinGomber,AssistantProfessor,OPJindalGlobalUniversity

Prof.(Dr.)Uday PratapSingh,ChairpersonCentreforLaw,GovernanceandHumanRights,NationalLawInstituteUniversity

Paper : International Human Rights Law

Module : International Customary Law

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Description of Module

Subject Name Human Rights and Duties

Paper Name International Human Rights Law

Module

Name/Title

International Customary Law

Module Id 04

Pre-requisites

Objectives

Keywords

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International Customary Law

As briefly iterated in Module 1, for a norm to qualify as customary international law, two

requirements need to be fulfilled: (a) a general state practice; and (b) the conviction that this practice

is legally required (opinio juris).1 Let us now look at these two criteria in detail:

A general State practice

The International Court of Justice has iterated that for a general State practice to constitute

customary international law; it must be ‘constant and uniform.' This implies that a certain passage of

time is required and during that period of time what matters is consistency in the way a particular

matter is handled. However, when it comes to human rights law, the practice will usually have

evolved over a long period of time. Also, there is no set number of States which must have adopted

such a practice in order to be known as ‘a general State practice,' but the practice of all the States in

this world need not be looked at either.

With respect to the passage of time, in the North Sea Continental Shelf case, the ICJ explained, “the

passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new

rule of customary law… [yet] an indispensable requirement would be that within the period in

question, short though it might be, State practice, including that of States whose interests are

especially affected, should have been both extensive and virtually uniform… and should moreover

have occurred in such a way as to show a general recognition that a rule of law or legal obligation

involved.”2

Now, since international law regulates the relationships between States, the practice that is relevant

for establishing a rule of customary law is, therefore, the practice (action or inaction) of States in

relation to each other or to other recognized international actors such as international organizations.

However, when it comes to the creation of customary international law in the field of human rights,

the practice of a State in relation to its own citizens is of much more significance.3 However, this has

1 Article 38 (1)(b) of the Statute of the International Court of Justice 2 [1969] ICJ Rep 43, para. 74 3 Earlier, the practice of a State in relation to its own citizens was a matter of “domestic jurisdiction” under Article 2 (7) of

the United Nations Charter. This article reads, “Nothing contained in the present Charter shall authorize the United

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its own drawbacks. The reason being that States usually paint a very bright picture of their nations,

whatever the ground reality may be. Even a country like North Korea, which is virtually isolated in the

world with all its fundings cut off by western sanctions, portrays a very merry picture of its citizens,

when in fact the ground reality tends to be very different.

The foregoing presents a very interesting question. What happens in the case of divergence between

States’ assertion of the existence of a particular rule of customary law, and their practice inconsistent

with it. In the field of human rights law, for example, it is probably the case that the municipal law of

practically every State of the world prohibits torture, and States generally agree, in theory, that there

is a rule of international law forbidding it; yet there is no doubt that torture continues to be widely

practised. Now, can a rule which is flouted behind the curtains and is shown to be adhered to

consistently and uniformly, crystallize into a customary law? An observation of the ICJ in the case

Military and Paramilitary Activities in and against Nicaragua is of particular importance here. The

court observed that for the recognition of the existence of a customary rule, it is sufficient that ‘the

conduct of States should, in general, be consistent with such rules and that instances of State conduct

inconsistent with a given rule should generally have been treated as breaches of that rule, not as

indications of recognition of a new rule’.4 The Court in this matter was dealing with customary rules

forbidding the use of force or intervention. Based on the ruling, one can infer that if instances of

torture do come to light, it is likely that neither the State involved nor the international community is

likely to suggest that it indicates recognition of a new rule. In the case of the use of force, the

tendency is to seek excuses, as for example that force was needed in self-defence; and on this the

Court commented further, “If a State acts in a way prima facie inconsistent with a recognized rule,

but defends its conduct by appealing to exceptions or justifications contained in the rule itself, then

whether or not the State’s conduct is, in fact, justiciable on that basis, the significance of that attitude

is to confirm rather than to weaken the rule”.5

Now the question is, where does one find the evidence of practice by States? This question too does

not have a very straightforward answer. However, such evidence could possibly be gathered from the

following: (a) Decisions of international courts/tribunals, particularly the ICJ; (b) Judgments of

national courts, particularly in respect of recognized immunities in favour of another State or its

Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the

Members to submit such matters to settlement under the present Charter;

4 Military and Paramilitary Activities in and against Nicargua [1986] ICJ 98, para. 186. 5 Military and Paramilitary Activities in and against Nicargua [1986] ICJ 98, para. 186.

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diplomats; (c) Statements issued by nations on topics of global relevance; (d) Speeches by the heads

of State in a formal setting, say on the floor of the General Assembly; (e)Voting practices of States at

regional and international fora, among others.

Opinio Juris

Opinio Juris means that an action was carried out by a State because it thought it had a legal

obligation to do so. Now, in addition to “a general State practice” it is necessary to demonstrate that

States are engaging in a consistent practice because they feel they are under a legal obligation to do

so. It is important to note in this regard that a mere social usage will not suffice for this purpose. It

has to be proved that the State’s actions are inspired by the rule of law alone!

With respect to opinio juris, the International Court of Justice observed in the North Sea Continental

Shelf (Federal Republic of Germany v. The Netherlands) case, “To establish custom… The frequency or

even habitual character of the acts is not enough. There are many international acts, e.g., in the field

of ceremonial and protocol, which is performed almost invariably, but are motivated only by

considerations of courtesy, convenience or tradition, and not by any sense of legal duty”.6

In fact, in the case concerning Jurisdictional Immunities of the State, the International Court of Justice

had the opportunity to particularly elaborate upon the observations it made in the North Sea case. In

this case, Italy was arguing for a qualification of the immunity recognized for States in respect of acts

jure imperii and relied on alleged State practice in support. The Court observed, “While it may be true

that States sometimes decide to accord an immunity more extensive than that required by

international law, for present purposes, the point is that grant of immunity in such a case is not

accompanied by the requisite opinio juris…” The Court therefore recognized the fact that an

international act not motivated by any sense of legal duty does not constitute opinio juris.

Now that it is clear what is opinio juris, it is important to move onto our next query, i.e., how to

confirm the existence of an opinio juris? It is not an easy task to gauge “why” a State is acting in a

particular manner. The reasons for doing so could be economic, political, religious, diplomatic, etc. In

6 [1969] ICJ Rep 44, para. 77.

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fact, with respect to international human rights, the problem is even more compounded as human

rights by their very nature involve the actions of a State towards its nationals and other residents. In

this regard, the Committee on the Formation of Customary Law set up by the International Law

Association (ILA) in 1985 observed, “… what seems clear is that, if there is a good deal of State

practice, the need also to demonstrate the presence of the subjective element of [opinio juris] is

likely to be dispensed with”.7 From the foregoing, it could be deduced that if there is “a good deal of

State practice,” the need for the presence of opinio juris could possibly be diluted to find in favour of

crystallization of customary international law.

The concept of Opinio Juris can better be understood by way of the following example:

[Stage 1] States recognize that a uniform and consistent practice has come into place.

[Stage 2] States also recognize that the said uniform and consistent practice flows from a rule of law

and has become binding practice.

The difficulty arises in finding out when actually the transition from Stage 1 to Stage 2 really takes

place. It is in this regard that the observations of ILA come into play.

Significance of Human Rights with customary law status

The question of customary law status of international human rights has over the years become less

significant in light of the explosive growth in treaty ratifications dealing with human rights. Today,

there are numerous human rights treaties in place dealing with a wide variety of subjects which tend

to give out the basic rights of all human beings. On the one hand, we have conventions casting a

negative obligation on to the State barring torture, enforced disappearance, discrimination against

7 International Law Association, Final Report of the Committee on Formation of Customary (General) International Law, Pt. III, p. 40, para. 19 (a)

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women, etc. and on the other, we have conventions casting a positive obligation on to the State for

providing social and cultural rights.

Now, even though the debate on what is customary law in respect of human rights might seem less

significant in light of a number of treaty ratifications, but the debate surrounding the customary

status of human rights is relevant in a number of other areas, as well. It sheds light on the issue of

which reservations8 to human rights treaties are invalid because of the customary law status of the

underlying provisions and also confirms that a State that denounces a treaty may under certain

circumstances remain bound by some of the treaty’s provisions.

Let us take a couple of examples to see how customary status of human rights may come into play in

the international arena:

(a) A is a country in Asia which is a UN member state. Until 2014, it is not a party to the International Covenant on Civil and Political Rights (ICCPR). In 2015, it accedes to the ICCPR and appends a statement along with its accession instrument, which says, “The provisions of Article 7 of the ICCPR shall be subject to the laws in place in country A, which may authorise such treatment or punishment for extracting information or confession.”

Now, Article 7 of the ICCPR says that no one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment. However, the reservation made by country

A says that its own laws may authorise torture or cruel treatment for extracting information

or confessions. Therefore, the laws (or the future laws) of country A are directly conflicting

with Article 7 of the ICCPR. In this scenario, the international community could argue that

8 A reservation is a statement made by a State while expressing consent to be bound by a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State; See Articles 19 to 23 of the Vienna Convention on the Law of Treaties, 1969.

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prevention of torture is a customary norm of international law and accordingly such a

reservation is void/illegal/inadmissible.

(b) Similarly, if country A was a party to the ICCPR from say the 1970’s and in 2000 assuming it withdraws9 its membership thereof, then it may not formulate legislations which violate Article 7 of the ICCPR, as prevention of torture, has attained the level of a customary norm of international law.

The question of the applicability of a human right as a customary law can also arise at the domestic

level. For example, Article 25 of the Constitution of the Federal Republic of Germany reads, “the

general rules of international law shall be an integral part of federal law. They shall take precedence

over the laws and directly create rights and duties for the inhabitants of the federal territory.” This

shows that customary international law will take precedence over the domestic laws of Germany.

This implies that the passage of any domestic law is barred in Germany which is in direct conflict with

the customary international law.

Similarly, the Supreme Court of India has played an active role in recognising norms of customary

human rights law. For example, in Vellore Citizens Welfare Forum v. Union of India, a public interest

litigation was filed by Vellore Citizens Welfare Forum against the Pollution which was being caused by

the enormous discharge of untreated effluent by the tanneries and other industries in the State of

Tamil Nadu. The Supreme Court, in this case, held, “we have no hesitation in holding that ‘sustainable

development‘ as a balancing concept between ecology and development has been accepted as a part

of the customary international law though its salient features have yet to be finalized by the

international jurists.”

Human rights with customary law status

The International Court of Justice has explicitly recognized the customary law status of the prohibition

of genocide. In Reservations to the Convention on the Prevention and Punishment of the Crime of

9 This is purely an assumption. The debate around whether nations may withdraw from universally accepted conventions, such as the ICCPR is a topic in itself and is not a part of your module.

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Genocide10, while giving an advisory opinion to the General Assembly of the United Nations, it held

that the principles underlying the Convention are recognised by civilised nations as binding on States

even without any conventional obligation. It further noted that the Convention on the Prevention of

Genocide was intended to be universal in scope with its purpose being purely humanitarian and

civilising. The Court also noted that the contracting States do not have any individual advantages or

disadvantages nor interests of their own, but merely a common interest. The foregoing language

indicates how strongly the Court felt about the prohibition of genocide as a norm of customary

status.

In the Case concerning Military and Paramilitary Activities in and against Nicaragua, the International

Court of Justice very categorically held that “there was an obligation on the United States

Government in terms of Article 1 of the Geneva Conventions to “respect” the Conventions and even”

to ensure respect” for them “in all circumstances since such an obligation does not derive only from

the Conventions themselves, but from the general principles of humanitarian law to which the

Conventions merely give specific expression.” The Court then went on to add that, “The United States

is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to

act in violation of the provisions of Article 3 common to the four Geneva Conventions…”. Common

Article 3 of the four Geneva Conventions in part provides, “the following acts are and shall remain

prohibited at any time and in any place whatsoever with respect to the above-mentioned persons11:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and

torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and

degrading treatment; (d) the passing of sentences and the carrying out of executions without

previous judgment pronounced by a regularly constituted court affording all the judicial guarantees

which are recognized as indispensable by civilized peoples…” Thus, in the foregoing decision, the ICJ

explicitly recognized the prevention and prohibition of half a dozen crimes as customary law status

thereby giving an impetus to the international human rights regime.

In addition, according to the Restatement of the Foreign Relations Law of the United States12, codified

by the American Law Institute, a leading independent organization in the United States producing

scholarly work to clarify, modernize, and improve the law, the following human rights violations are

10 ICJ Reports 1951, 23. 11 Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. 12 Restatement of the Foreign Relations Law of the United States, 1986, adopted and promulgated by the American Law Institute, 14 May 1986 (American Law Institute Publishers, Washington 1987), para 702, 161 – 75.

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prohibited by customary law when practised, encouraged, or condoned as a matter of state policy: (a)

genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d)

torture or other cruel, inhuman or degrading treatment or punishment, (e) prolonged arbitrary

detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of

internationally recognized human rights.

Furthermore, the Human Rights Committee, which is tasked with the monitoring of the International

Covenant on Civil and Political Rights has also come up with its own list of human rights that

represent customary international law. These include the prohibition of slavery, torture, subjecting

persons to cruel, inhuman or degrading treatment or punishment, arbitrarily depriving persons of

their lives, arbitrarily arresting and detaining persons, denying freedom of thought, conscience and

religion, presuming a person guilty unless he proves his innocence, executing pregnant women or

children, permitting the advocacy of national, racial or religious hatred, denying to persons of

marriageable age the right to marry, or denying to minorities the right to enjoy their own culture,

profess their own religion, or use their own language13.

Self-Assessment Questions

1. What is a custom? How does a state practice becomes a custom?

2. Where does one find the evidence of practice by States?

3. In the hierarchy of sources of international law, what is the status of customary law?

4. How has the body of international human rights grown with the customary international

law?

Further readings:

1. Human Rights as Part of Customary International Law: A Plea for Change of Paradigms, by

Anthony D’Amato, 25 Ga. J. Int'l & Comp. L. 47-98, Fall,1995 /Winter, 1996.

2. Arthur M. Weisburd, The Effect on the Customary Law of Human Rights of Treaties and

other Formal International Acts, 25 GA. J. INT'L & COMP. L. 99 (1995-96)

13 Human Rights Committee, General Comment No. 24 (1994)

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content writer: prof. nitin gomber, assistant professor, o

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