Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction
was of “universal character” both with regard to “the condemnation of genocide and ...
the co-operation required ‘in order to liberate mankind from such an odious
scourge’”.21 Finally, the Court noted that the Convention had been approved by a
resolution which was unanimously adopted by the States.22 It is thus beyond doubt that
in 1951 the crime of genocide was already part of customary international law, applicable to
all States.
Later, in the Barcelona Traction case, the International Court of Justice
significantly made “an essential distinction” between “the obligations of a State
towards the international community as a whole, and those arising vis-à-vis another
State in the field of diplomatic protection”.23 It added that by “their very nature the
former are the concern of all States”, and, in “view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes”.24 In the view of the Court, such “obligations derive, for
example, in contemporary international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination”.25 It added
that whilst some “of the corresponding rights of protection have entered into the body
of general international law ... ; others are conferred by international instruments of a
universal or quasi-universal character”.26
Finally, and as already noted above, in its dictum in the hostages in Tehran case,
the Court stated that:
“Wrongfully to deprive human beings of their freedom and to subject
them to physical constraint in conditions of hardship is in itself manifestly
incompatible with the principles of the Charter of the United Nations, as
well as with the fundamental principles enunciated in the Universal
Declaration of Human Rights”.27
It is thus beyond doubt that basic human rights obligations form part of
customary international law. Whilst the International Court of Justice has expressly
mentioned the crimes of genocide and aggression, as well as the prohibition of racial
discrimination, slavery, arbitrary detention and physical hardship as forming part of a
universally binding corpus of law, it has not limited the scope of the law to these
elements.
v General Assembly resolutions: It may not be an easy task to identify international
custom, but resolutions adopted by the United Nations General Assembly can in
certain circumstances be regarded as having legal value, albeit not legally binding per
se. This is, for instance, the case with the Universal Declaration of Human Rights.
Thus, although not a source of law in the strict sense, they can provide evidence of
customary law. However, this will to a large extent depend on their contents, such as
21 Ibid., loc. cit.
22 Ibid.
23 Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p. 32, para. 33.
24 Ibid., loc. cit.
25 Ibid., p. 32, para. 34.
26 Ibid., loc. cit.
27 ICJ Reports 1980, p. 42, para. 91.
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers