Before moving on to the substance of selected human rights treaty regimes, it will be useful to briefly touch upon two issues that will recur regularly in the following Chapters 2 and 3, namely the question of the sources of international human rights law (Section I.) and the interpretation of human rights treaties (Section II.). Just like in the context of environmental treaty regimes (see infra, Chapter 4), it will be seen that it is notably the practice of treaty bodies that tends to sit uneasy within the traditional canon of the sources of international law and the principles of interpretation. Unlike IEL scholars, however, human rights lawyers appear to have been much more eager to affirm the specifics and peculiarities of ‘their’ branch of international law and to set it apart from the general framework of public international law.

THE SOURCES OF HUMAN RIGHTS LAW

As was already indicated in the Introduction, the following discussion will focus primarily on human rights law as encompassed in treaty instruments. To be certain, considerable attempts have been made to ground a number of human rights in customary international law, general principles of international law, or the Charter of the United Nations (‘UN Charter’) itself. However, human rights treaties arguably remain the central legal mechanism and forum for the future development of human rights law and therefore merit primary attention. The evident drawback of this primary importance of treaties is that by including human rights norms into the technical framework of an international treaty they become, at least at first sight, contingent upon the logics of treaty law. Little is left of the universal moral power of human rights grounded in natural law, if the respective treaty provisions are subject to party reservations, the ability to make (restrictive) amendments, and the ultimate possibility of withdrawal. When enshrined in the framework of an international treaty, human rights provisions do not lend themselves all too easily to a ‘constitutionalist’ reading that could lift them above the constraints of treaty law. In positivist terms, however, treaties do provide a perfectly valid source for international obligations of the parties. This is much less evident for other instruments that have fared prominently in the human rights context, notably the pronouncements of human rights treaty bodies (1.), and the human rights guidance formulated by other, non-treaty based, human rights organs (2.).