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International human rights law is founded on the Universal Declaration of Human Rights (UDHR), which represents the universal protection of inalienable, inherent and fundamental rights and freedoms of everyone.

Adopted by the United Nations General Assembly (UN), it’s ‘declaratory’ in nature and not legally binding on its 193 member states. Nevertheless, it’s politically authoritative and the basis of multiple human right treaties, which are legally binding and have been ratified by member states’ legislature, namely the International Bill of Human Rights. Others include:

• Convention on the Rights of the Child;
• Convention on the Rights of Persons with Disabilities; and
• Convention against Torture.

The UN also gives authoritative ‘recommendations’, which are multilaterally agreed by member states but do not require ratification. 

State practices and specific principles from various human right instruments can become ‘customary international law’, which is defined by the International Court of Justice as ‘general practices accepted as law’. Therefore, consistent state practices can develop international human rights law if member states are acting in accordance with their international legal obligations (opinio juris).

Customary international laws vary as some may only be followed by a small number of states whereas others have become fundamental principles and non-derogable norms for the international community (jus cogens). An example of this are the international customary laws of war, receiving codification and enforceability by the Hague Convention of 1899 and 1907, the Geneva Conventions, etc. Nevertheless, member states are generally bound by customary international law, irrespective of whether states have domestically codified them.

International human rights is supplemented by regional human rights law; the key instruments include:

• the African Charter on Human and Peoples’ Rights for Africa of 1981;
• the American Convention on Human Rights for the Americas of 1969; and
• the European Convention of Human Rights (ECHR).

The Organisation of American States and the Council of Europe have adopted their own treaties to address human rights in their specific areas, though these have weaker enforcement mechanisms. Nevertheless, the European Court of Human Rights is a powerful monitoring mechanism as it has substantial political authority and its decisions on implementation are nearly always followed, highlighting the importance of the judiciary in the separation of powers. 

How enforceable is international human rights law?

The most recent use of international human rights law is the famous case by South Africa against Israel at the International Court of Justice under the Convention on the Prevention and Punishment of the Crime of Genocide. This pertained to Israel’s response to the Hamas attacks on 7 October 2023, where around 1,200 people were killed and 240 were taken hostage.

South Africa argued Israel’s response to be a genocide against Palestinians, stating that its acts and omissions are “genocidal in character, as they are committed with the requisite specific intent … to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group”.

The International Court of Justice ordered “immediate and effective measures” to protect Palestinians in the occupied Gaza Strip by mandating that there should be basic humanitarian assistance and services such as access to food, water, hospitals, etc.

Nevertheless, this case perfectly illustrates the limitations of international human rights law, as it’s been argued that Israel has not followed these orders nor changed their approach in Palestine. International human rights law is commonly criticised for its lack of power as there’s arguably no vehicle of enforcement. 

Others argue that international human rights law can be enforced in multiple ways, namely that states are compelled to regularly report to UN treaty bodies that monitor and ensure compliance with human rights treaties. This results in greater transparency as states explain actions and decisions, show they’re consistent with the treaties and vindicate the importance of human rights within the state. 

Another procedural and enforcement mechanism is through five of the treaty bodies accepting complaints by individuals or representatives, arguing that the state has breached its respective human rights and are seeking compensation/retribution. The treaty bodies may direct states to provide certain forms of redress, like release of prisoners and humanitarian instructions. The Human Rights Council also accepts individual complaints for the purpose of identifying systematic violations. Moreover, states are part of the Universal Periodic Review every four years, organised by the UN Human Rights Council, which is a three-hour discussion of state reports.