The Making of International Human Rights Law
Research Handbook on the Theory and Practice of International Law-Making, C.M. Brölmann, Y. Radi (eds.), Edward Elgar, 2016, pp. 329-353
29 Pages Posted: 15 Jul 2015 Last revised: 9 May 2016
Date Written: July 13, 2015
The paper discusses how human rights norms are created in international law. After explaining the limits of the sources of positive international law (and especially the problems that are inherent to custom making), it turns towards the role of international courts and tribunals and discusses the ways through which these may recognise the existence of human rights. The paper identifies a number of means that are available to international courts for that task and highlights the distinction between consensus-based reasoning, and decision making based on human rights principles.
Keywords: Human rights, international law, legal positivism, international custom, rule of recognition, European consensus, sources of international law, judicial interpretation
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