Document Type
Book Chapter
Publication Date
2018
Abstract
The legalisation and judicialisation of international human rights have founded arguments that human rights constitutes a sub-discipline of international law, a ‘distinct jurisprudential phenomenon’, indeed a ‘special law’, central to the anxieties about the fragmentation of international law. The human rights world is a very different one from that envisaged by the VCLT: the latter is an empty, amoral world where States have reciprocal dealings only with other States, where there are no people hurt by States’ actions and demanding reparations, no international institutions creating special mechanisms peopled by experts for monitoring and reporting and no non-governmental organizations (NGOs) demanding accountability. It is not surprising that human rights advocates are uncomfortable with the narrow perspective of the VCLT. They make claims for the supremacy of the ‘special law’ of human rights as the basis of an embryonic global or regional constitutional order that challenges accepted principles of general international law such as State consent and State responsibility. Further, NGOs feel a sense of ownership towards a human rights treaty for which they have campaigned. Somewhat inconsistently, they may lobby for the hard legal form but seek to ignore (and persuade others to ignore) what they perceive as legal formalities once a treaty has come into force.
This chapter explores some of these claims and the extent to which the ‘special character of a human rights treaty’ impacts upon the applicability of the VCLT or has been influential in the evolution of the modern law of treaties. It examines the threshold question of what constitutes a human rights treaty and looks at a number of significant areas where the applicability of the VCLT has been explored or contested, in particular with respect to its impact on State obligations. It concludes that apparent deviation from the VCLT often in fact falls within its residual scope and that this flexibility has allowed for an expansive application of human rights treaties in order to enhance their scope of protection. Differences in approach may depend upon the identity of the decision-maker, for example specialist human rights bodies may be less ready to accept the constraints of treaty law than government officials or ‘mainstream’ bodies of international law such as the International Law Commission (ILC) or ICJ.
Publication Information & Recommended Citation
Chinkin, Christine M. "Human Rights." In Conceptual and Contextual Perspectives on the Modern Law of Treaties, edited by Michael J. Bowman and Dino Kritsiotis, 509-537. Cambridge: Cambridge University Press, 2018.
Comments
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