8.1 Foundations of International Law and Human Rights

Human rights law has evolved from ancient philosophical roots to modern international frameworks. Key developments include Enlightenment-era theories, post-WWII declarations, and ongoing debates on universalism vs. cultural relativism.

International law draws from treaties, customs, and general principles, balancing state sovereignty with global norms. The UN plays a crucial role in promoting human rights through various bodies, monitoring mechanisms, and peacekeeping operations.

Historical and Philosophical Foundations

Development of human rights law

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• Ancient philosophical roots shaped early human rights concepts through natural law theories and Stoic philosophy emphasizing universal equality (Roman Empire)
• Enlightenment era thinkers advanced human rights ideas with John Locke's natural rights theory and Rousseau's social contract theory (17th-18th centuries)
• Post-World War II developments established modern human rights framework including Universal Declaration of Human Rights (1948) and International Covenants (1966)
• Contemporary philosophical approaches debate universalism vs cultural relativism and explore capabilities approach by Nussbaum and Sen (late 20th century)

Sources and Principles of International Law

Sources of international law

• Treaties form binding agreements between states, governed by Vienna Convention on the Law of Treaties (1969) (UN Charter)
• Customary international law emerges from consistent state practice and opinio juris (Law of the Sea)
• General principles of law derived from national legal systems fill gaps in international law (good faith)
• Subsidiary sources include judicial decisions and teachings of experts (ICJ rulings)
• Jus cogens norms represent non-derogable peremptory norms (prohibition of genocide)

International law vs state sovereignty

• Westphalian sovereignty concept emphasizes non-intervention and equality of states (Peace of Westphalia 1648)
• Sovereignty limited by treaty obligations and customary international law constraints (WTO agreements)
• Responsibility to Protect doctrine reframes sovereignty as responsibility, allowing intervention for mass atrocities (Libya 2011)
• Jurisdictional issues arise with territorial and universal jurisdiction for certain crimes (Pinochet case)
• State consent underpins international obligations through pacta sunt servanda principle, with possibility of treaty reservations (Vienna Convention)

United Nations and Human Rights

UN's role in human rights

• UN Charter provisions establish human rights as a core purpose, promoting universal respect (Articles 1, 55, 56)
• UN human rights bodies include Human Rights Council and Office of the High Commissioner for Human Rights
• Treaty-based monitoring mechanisms oversee implementation of major human rights treaties (Human Rights Committee)
• Special procedures investigate specific countries or thematic issues (Special Rapporteurs)
• Universal Periodic Review process conducts peer review of all UN member states' human rights records
• UN peacekeeping operations increasingly incorporate human rights components and civilian protection mandates (MONUSCO)