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Customary Law and Treaties

INTL254 Introduction to International Human Rights
Nadya Nedelsky
JP, SP, AM. Group 3

This reading moves from considering customary law to discussing more concrete forms of international law arising from treaties. It first discusses minority protection treaties, which were some of the first to deal with issues within states rather than between states. These treaties bring up many important questions, such as what constitutes a minority group and how they should be protected. More specifically, the Minority Schools in Albania case introduces the concept of equality in law versus equality in fact, illustrating a case where these two conflict. These concepts seem to be problematic: on one hand they assure that minorities have the same rights as the majority. On the other hand, they grant special rights to the minority. Are these special rights justified and are they in the minority’s interest? How much do they help minorities by preserving their culture but also harm them by slowing their integration and development?

Underlying this discussion is the issue of the role treaties play in creating international law. In contrast to customary law, treaties seem more formal, formed by the express consent of the parties involved. This fact makes treaties more effective in many ways, as it can justify and facilitate their enforceability. At the same time, treaties also have many weaknesses, due to differences in interpretation, and the necessity of support from signatories. In addition, unlike customary law, treaties have the ability to create international organizations with their own institutional structures. Do they (or should they) have more weight than customary law? Are there some circumstances under which a treaty’s legitimacy is undermined? Should treaties established under some sort of duress be void? For example, how would this principle apply to the treaties created after WWII?

The Nuremberg Trials were significant because they more clearly defined the concept of individual criminal responsibility during wartime, and introduced the concepts of crimes against peace and crimes against humanity. These concepts are all foundational to the current human rights movement. Nevertheless, the trials stirred much debate because they were seen to be justice imposed by the victors and because they involved trials for crimes which had not been explicitly made illegal at the time they were committed, although many of them seem commonsensical. They have also been criticized because they examined only the war crimes committed by the Axis, while disregarding those committed by the Allied Powers. Despite these controversies, the Nuremburg Trials provided an important basis for future trials of international war crimes and crimes against humanity. Could there be a mechanism to ensure that both sides to a conflict are held accountable for any crimes committed? If so, what would it be? How should the international community deal with crimes which were not covered by previous laws? Was the use of ex post facto laws in the Nuremberg Trials justified?

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