HUMAN RIGHTS IN CUSTOMARY INTERNATIONAL LAW

Abstract

It’s fair to say that human rights have come a long way since the times of Hitler condemning the Jews to the gas chambers or for that matter Stalin purging twenty million Russians to death, which records for the worst genocide in history. International lawyers at that time believed Stalin’s actions to be within the sovereignty of the Soviet Union calling it a matter of domestic jurisdiction (D'Amato, Human Rights as Part of Customary International Law: A Plea for Change of Paradigms, 1995-1996). The Nuremberg Trials1 and the Genocide Convention of 19482 is seen as a major breakthrough for establishment of human rights following the Second World War at the international level. The Nicaragua Judgment 3 further strengthened the role of Human Rights in customary international law by holding the United States in breach of the code. But what exactly is the role of Customs in International Law and its relation with human rights? Custom has become an incredibly significant source of law in areas such as human rights obligations 4 . Custom can be described as “evidence of a general practice accepted as law.”5 Custom can further be divided into traditional custom and modern custom, two opposing approaches. To consider a custom acceptable at the international stage it is necessary for it to be to of state practice and of an obligation to perform in a certain way. The concept of ‘Jus Cogens’ refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted.6 This has been enshrined in Article 53 of the Vienna Convention on the Law of Treaties, 1969.