The Customary International Law of Human Rights

429 Pages·2021·4.63 MB·English

by  William A. Schabas

The Customary International Law
of Human Rights

The Customary
International Law
of Human Rights
WILLIAM A. SCHABAS
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
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First Edition published in 2021
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Library of Congress Control Number: 2021932331
ISBN 978– 0– 19– 284569– 6
DOI: 10.1093/ oso/ 9780192845696.001.0001
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Acknowledgements
This project was many years in gestation, but for most of them there was talk but
little action, as my colleagues and students will confirm. To paraphrase Mark Twain,
everybody talks about customary international law but nobody does anything
about it, and I was no exception. My research in the area was regularly put aside
in favour of other tasks including academic and professional duties. Ultimately,
the restrictions on freedom of movement in reaction to COVID- 19 created the
conditions for its completion. My academic base, Middlesex University, locked
my office and told me to work from home, and that’s what I did. I even bought a
t- shirt that said ‘Work from home? I don’t even work from work’, attesting to the
fact that research in human rights is an avocation rather than a vocation. Virtually
every day of the lockdown, Penelope cracked the whip (figuratively), urging me to
finish the job. Her companionship and support over the months of isolation was
indispensable.
I also had some help along the way from Mohamed Elewa Bader, Christina
Cerna, Milena Sterio, and Alfred de Zayas. Many thanks to you all.
William Schabas
London, 10 December 2020

Table of Contents
Table of cases xi
Table of legislation xxxi
Introduction: The customary law of human rights is hiding in plain sight 1
1. The belated emergence of the customary international law of
human rights 9
A. Drafting an international bill of rights 11
B. The debate about customary human rights law emerges 18
C. American lawyers and alien torts 21
D. Theodor Meron’s study of customary law 24
E. Critics of the American school 27
F. The Human Rights Committee’s General Comment 31
G. Subsequent developments 36
2. Identifying the norms of the customary international law of
human rights 40
A. International case law and other authorities 41
B. Peremptory norms (jus cogens) 53
C. Apocryphal customary law 67
D. Identifying the two elements of customary international law 71
E. Universal Periodic Review as evidence of custom 76
F. Significance of the Universal Declaration of Human Rights 80
G. Near- universal ratification of human rights treaties 83
H. Particular or regional customary norms 91
I. Emerging or crystallising norms and the persistent objector 94
3. Methodological considerations 102
4. Dignity 107
A. Right to life 109
1. Prohibition of genocide 114
2. Death penalty 116
3. Armed conflict 124
4. When does the right to life begin? 125
5. Voluntary termination of life 126
B. Torture and cruel, inhuman, or degrading treatment or punishment 127
1. Cruel, inhuman, or degrading punishments 133
2. Admissibility of evidence 136
3. Non- refoulement 137
viii Table of Contents
4. E nforced disappearance 138
5. V iolence against women 139
C. Slavery and servitude 142
D. Liberty and security 148
1. R ight to security 154
2. I mprisonment for debt 154
E. Recognition as a person before the law 155
5. Equality 161
A. Equality and non-d iscrimination 163
1. P rotected categories 169
2. U nenumerated categories 174
B. Special protection of children 178
C. Minority rights and rights of indigenous peoples 184
6. Fundamental freedoms 191
A. Opinion and expression 192
1. F reedom of opinion and expression 195
2. F reedom of information 197
3. Restrictions 197
B. Thought, conscience, and religion 200
1. F reedom to change religion 203
2. M anifesting religion 205
3. R eligion of children 206
C. Peaceful assembly 207
D. Association 210
1. T rade unions and collective bargaining 213
2. Th e right to strike 215
E. Privacy, family, home, and correspondence 218
1. P rotection of privacy 220
2. P rotection of family life 222
3. P rotection of home 228
4. P rotection of correspondence 228
5. P rotection against attacks on honour and reputation 229
F. Marriage 230
1. C onsent to Marriage 235
2. Equality 237
G. Mobility and asylum 240
1. F reedom of movement 243
2. Restrictions 245
3. Asylum 247
H. Nationality 254
I. Property 258
7. Political rights 263
A. Participation in government 263
B. Equal access to the public service 269
Table of Contents ix
8. Justice 271
A. Effective remedy and right of access to justice 272
B. Fair trial 276
1. F ull equality 278
2. F air and public hearing 279
3. I ndependent and impartial tribunal 281
4. P resumption of innocence 281
5. G uarantees necessary for the defence 284
C. P rinciple of legality—n ullum crimen nulla poena sine lege 287
D. Children and criminal justice 291
9. Economic, social, and cultural rights 295
A. Social security 298
B. Right to work 300
C. A dequate standard of living 303
1. Food 303
2. Clothing 305
3. Housing 306
4. H ealth and medical care 308
5. W ater and sanitation 310
D. Education 312
1. P rohibition of discrimination in education 316
2. A ims of education 317
3. P rivate schools and parental choice in education 318
E. Cultural rights 320
10. Solidarity 327
A. Peace 328
B. Healthy environment 330
C. S elf determination 336
D. Development 338
Conclusion: The future of the customary law of human rights 341
Bibliography 347
Index 367